Opinion
Case No. 02-4010-DES.
April 10, 2002
MEMORANDUM AND ORDER
This matter is before the court on Plaintiff's "Motion in Opposition to Federal Jurisdiction." (Doc. 5). In affording plaintiff's motion a liberal interpretation, the court construes the motion as a motion to remand this action to state court. After reviewing the filings in this matter, the court finds plaintiff's motion shall be denied.
See White v. Colorado, 82 F.3d 364, 366 (10th Cir. 1996) (citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)) (noting that papers submitted to the court by a pro se litigant should be construed liberally).
I. BACKGROUND
Plaintiff initially filed this action in the District Court of Johnson County, Kansas. In his complaint, plaintiff claims that defendants Flannagan and Seitter, a federal bankruptcy judge and a trustee in bankruptcy respectively, unlawfully allowed plaintiff's creditor to garnish a tax refund in a bankruptcy proceeding. Plaintiff claims that he receives disability income on which he pays taxes. Plaintiff made an overpayment in taxes resulting in a $3,806.04 tax refund. The tax refund in question was garnished by plaintiff's creditor. Plaintiff claims the defendants violated federal and state law by allowing plaintiff's creditor to garnish disability income. Plaintiff seeks actual damages, punitive damages, and injunctive relief compelling both defendants to "release the pension funds under garnishment."
On January 15, 2002, defendant Flannagan filed a notice of removal to federal court pursuant to 28 U.S.C. § 1441, 1442, and 1446. In response, plaintiff filed the current motion to remand this case to state court. For the following reasons, plaintiff's motion shall be denied.
II. DISCUSSION
Removal pursuant to 28 U.S.C. § 1442 (a)(3) provides that civil actions commenced in state court against "[a]ny officer of the courts of the United States, for any act under color of office or in the performance of his duties" may be removed by such officer to the district court of the United States. When removal is sought under this statute, the moving party does not have to establish that the federal court had original jurisdiction, such as diversity or federal question jurisdiction. Jefferson County, Alabama v. Acker, 527 U.S. 423, 430-31 (1999). This policy assures that "defenses of official immunity applicable to federal officers are litigated in federal court." Christensen v. Ward, 916 F.2d 1462, 1483 (10th Cir. 1990) (citing Willingham v. Morgan, 395 U.S. 402, 406-07 (1969)).
To qualify for removal pursuant to 28 U.S.C. § 1442 (a)(3), an officer of the court must raise a "colorable federal defense" and establish that the suit is "for an act under color of office." Acker, 527 U.S. at 431. In evaluating the later factor, the court must determine whether the officer showed a "`causal connection between the charged conduct and asserted official authority."' Acker, 527 U.S. at 431 (quoting Willingham 395 U.S. at 409).
It is noteworthy that in assessing whether a defendant has demonstrated a "colorable federal defense," the Supreme Court has rejected a "narrow, grudging interpretation" of the statute. Acker, 527 U.S. at 431. Broad interpretation of this factor supports the preference of litigating the validity of the defense of official immunity in federal court. Acker, 527 U.S. at 431. In furtherance of this policy, courts "do not require the officer virtually to `win his case before he can have it removed."' Id.
In the instant case, the court finds that the requirements set forth by the Supreme Court in Acker have been met by the defendant seeking removal. First, as a federal bankruptcy judge, defendant Flannagan is clearly an officer of the courts of the United States. Second, defendant Flannagan has established a "colorable federal defense," namely judicial immunity. Finally, plaintiff brought his claim against defendant Flannagan for an act defendant Flannagan took in the performance of his duties, thus establishing a causal connection between the charged conduct and defendant Flannagan's asserted official authority. Based on the above discussion, pursuant to 28 U.S.C. § 1442 (a)(3) this case was properly removed to federal court. Plaintiff, however, has raised additional objections to defendant's notice of removal.
As mentioned previously, plaintiff contends that defendant Flannagan unlawfully allowed plaintiff's creditor to garnish his tax refund in a bankruptcy proceeding. Defendant Flannagan's actions were obviously taken in his capacity as a Federal Bankruptcy Judge.
First, plaintiff complains that the case cannot be removed because defendant Seitter did not consent to removal or did not attempt to remove the case himself. Removal pursuant to 28 U.S.C. § 1442, constitutes an exception to the general removal rule under 28 U.S.C. § 1441, which requires all defendants to join in the removal petition. Akin v. Ashland Chem. Co., 156 F.3d 1030, 1034 (10th Cir. 1998). In this instance, the entire action is removed without consent of all defendants, even if the action alleges state law claims and includes defendants who are not eligible to remove the case. Akin, 156 F.3d at 1034; Dillon v. Mississippi Military Dep't, 23 F.3d 915, 919 (5th Cir. 1994). Therefore, plaintiff's complaint in this regard is unfounded.
Additionally, defendant Seitter, as a bankruptcy trustee, is considered an officer of the court for removal purposes. See Charges of Unprofessional Conduct Against 99-37 v. Stuart, 249 F.3d 821, 824-25 (8th Cir. 2001); In re Serrato, 117 F.3d 427, 428 (9th Cir. 1997).
Plaintiff's second contention is that he does not consent to federal jurisdiction. Removal to federal court from state court does not require consent from the plaintiff in the action. Thus, plaintiff's complaint in this regard is also unfounded.
Plaintiff's final contention is that defendant Flannagan did not provide grounds for seeking removal. In his notice of removal, defendant Flannagan clearly states he is an officer of the court, he is seeking removal pursuant to 28 U.S.C. § 1442(a)(3), and that the complaint brought against him pertained to his official duties. Thus, plaintiff's contentions are incorrect and therefore rejected by the court.
III. CONCLUSION
The court finds this action was properly removed to federal court pursuant to 28 U.S.C. § 1442(a)(3). The court further finds that plaintiff's objections in regard to his need to consent to federal jurisdiction, the co-defendant's need to consent to federal jurisdiction, and defendant Flannagan's notice of removal are unfounded. Therefore, plaintiff's motion to remand shall be denied.
IT IS THEREFORE BY THIS COURT ORDERED that the Plaintiff's Motion in Opposition to Federal Jurisdiction (Doc. 5) is denied.