Swett v. Schenk

• Citation: 792 F.2d 1447
• Decision Date: 30 June 1986
• Docket Number: No. 85-5592,85-5592
• Parties: Scott SWETT, Plaintiff-Appellant, v. George SCHENK, acting as the personal representative of the estate of Harris Tallakson, deceased; Sabre Industries, Inc.; Cessna Aircraft Company; and Does 1 through 5 and Does 7 through 50, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1447

792 F.2d 1447

Scott SWETT, Plaintiff-Appellant, v. George SCHENK, acting as the personal representative of the estate of Harris Tallakson, deceased; Sabre Industries Inc.; Cessna Aircraft Company; and Does 1 through 5 and Does 7 through 50, Defendants-Appellees.

No. 85-5592.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 4, 1985.

Decided June 30, 1986.

Ned Good, Good & Novack, Pasadena, Cal., for plaintiff-appellant.

James R. Sullivan, Asst. U.S. Atty., William T. Delhagen, Kirtland & Packard, Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before ANDERSON and NORRIS, Circuit Judges, and COPPLE, ^* District Judge.

J. BLAINE ANDERSON, Circuit Judge:

Scott Swett ("appellant") appeals from a United States District Court order dismissing a contempt action against an investigator of the National Transportation Safety Board ("NTSB"). Appellant argues that removal of the action from the California Superior Court was improper and that the contempt finding should not have been dismissed. We affirm.

I. BACKGROUND

A single-engine plane crashed on July 9, 1980, killing all four persons on board, including appellant's parents. The NTSB conducted an investigation of the crash. Appellant brought an action for wrongful death in the Superior Court of California, seeking damages from the pilot's estate and Cessna Aircraft Company.

Appellant sought to depose the NTSB investigator who conducted the investigation of the crash, one Llorente, by gaining the permission of the NTSB as provided in 49 C.F.R. Sec. 835.6(a). At the deposition, appellant asked Llorente to repeat certain conversations that took place, during the course of the investigation, between himself and an investigator from defendant Cessna. In these conversations, the Cessna investigator may have expressed an opinion as to the cause of the accident. Under orders from the NTSB Chairman, and relying on 49 C.F.R. Sec. 835.3(b), Llorente refused to answer these questions. Section 835.3(b) forbids NTSB employees from testifying as to their opinions regarding accidents, but allows testimony as to all factual information obtained during an investigation. Appellant challenged Llorente's refusal, arguing that the questions solicited only factual matters. The Superior Court agreed and ordered Llorente to answer.

The government removed the case immediately to the United States District Court. The district court remanded the case back to the state court, however, because it found that Llorente and the NTSB were not parties to the underlying action and, therefore, removal was improper.

On remand, appellant continued with his questions and Llorente continued his refusal to answer. The state court found Llorente in civil contempt and sentenced him to jail until he answered, but first released him for 60 days on his own recognizance. In response, the government removed the case for the second time to the United States District Court. ¹

The district court expressed concern that the contempt action was not identified by a caption separate from the underlying wrongful death action. The district court stated its intention to remand to the state court, where the contempt action could be denominated with a separate caption, after which time the contempt action could be removed separately. Before a remand order to this effect was signed, however, the state court issued a bench warrant for Llorente's arrest.

In response, the government filed with the district court an ex parte application to stay the remand until the district court could consider a motion for reconsideration. The district court granted the stay, and sua sponte enjoined the state court from enforcing contempt sanctions. Thereafter, on motion for reconsideration, the district court dismissed the state court's contempt action against Llorente and remanded the rest of the action. Before this court, appellant challenges both the grant of the removal petition and the dismissal of the contempt action.

II. DISCUSSION

The questions presented on this appeal are questions of law which we review under the de novo standard of review. See United States v. McConney, 728 F.2d 1195 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

A. Removal To The Federal Court

The Federal officer removal statute, 28 U.S.C. Sec. 1442, provides in pertinent part:

"(a) A civil action or criminal prosecution commenced in a State court against any of the following persons 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) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office ..."

28 U.S.C. Sec. 1442(a)(1).

The long-standing purpose of this removal statute 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, 101 S.Ct. 1657, 1664, 68 L.Ed.2d 58, 68 (1981) (footnote omitted). The Supreme Court "has held that the right of removal is absolute for conduct performed under color of federal office, and has insisted that the policy favoring removal 'should not be frustrated by a narrow, grudging interpretation of Sec. 1442(a)(1).' " Id., 451 U.S. at 242, 101 S.Ct. at 1664, 68 L.Ed.2d at 69 (citing Willingham v. Morgan, 395 U.S. 402, 407, 89 S.Ct. 1813, 1816, 23 L.Ed.2d 396 (1969)). Against this backdrop, we consider appellant's claims that removal was improper in this case.

Appellant argues that removal based on section 1442(a)(1) was error because, under the "color of office" test, there is no causal connection present at bar between the charged conduct and the asserted official authority. This is so, argues appellant, because Llorente was asked only factual questions which he is required to answer under 49 C.F.R. Sec. 835.3(b). Consequently, continues appellant, Llorente was not enforcing federal laws, and the case cannot be removed. We reject this narrow view.

It is undisputed that when Llorente declined to answer the questions, he did so pursuant to orders from the Chairman of the NTSB. It is also beyond argument that the Chairman based these directions not to answer on section 835.3(b)'s proscription against divulging opinions. This is all the causal connection that is required. The removal statute is, at the very least, "broad enough to cover all cases where federal officers can raise a colorable defense arising out of their duty to enforce federal law." Willingham v. Morgan, 395 U.S. 402, 406-407, 89 S.Ct. 1813, 1815-1816, 23 L.Ed.2d 396, 401 (1969) (emphasis added). Llorente has raised a colorable defense. He need not win his case before he can have it removed. "[O]ne of the most important reasons for removal is to have the validity of the defense of official immunity tried in federal court.... In cases like this one, Congress has decided that federal officers ... require the protection of a federal forum." Id.; See State of Utah, etc. v. IWY Coordinating Committee, etc., 454 F.Supp. 518, 520 (D.Utah 1978).

Appellant also argues that the government did not have standing to remove the entire case and, therefore, should have removed only the contempt order. As noted previously, the district court was concerned about the fact that the contempt order was not distinct from the wrongful death action, and wanted the state court to separate the two actions by the use of different captions so that the contempt proceeding could be neatly removed. The state court's issuance of the bench warrant, however, necessitated removing the entire action.

It is clear that a contempt action against a federal official for failure to comply with a state court order, although ancillary to the underlying state action, is a distinct action which may be removed. State of Wisconsin v. Schaffer, 565 F.2d 961, 964 (7th Cir.1977). It is otherwise well settled, "that a federal court does have the power to hear claims that would not be independently removable even after the basis for removal jurisdiction is dropped from the proceedings." Watkins v. Grover, 508 F.2d 920, 921 (9th Cir.1974); Murphy v. Kodz, 351 F.2d 163, 167 (9th Cir.1965). Further, it is within the district court's discretion, once the basis for removal jurisdiction is dropped, whether to hear the rest of the action or remand it to the state court from which it was removed. Watkins, 508 F.2d at 921. It follows logically that it was permissible for the district court to remove the entire case initially, particularly in light of the circumstances, and to then exercise its discretion to remand the pending wrongful death action to the state court. See IMFC Professional Services of Florida, Inc. v. Latin American Home Health, Inc., 676 F.2d 152, 158-159 (5th Cir.1982); National Audubon Soc. v. Department of Water, etc., 496 F.Supp 499, 509 (E.D.Cal.1980); 1A Moore's Federal Practice p 0.164 (2d ed. 1985).

Finally, appellant argues that the government waived its right of removal by consenting to Llorente's deposition. This argument is wrong for two reasons. 49 C.F.R. Sec. 835.6(b) provides that, in permitting an investigator to testify, the NTSB should condition that testimony in order that it "will be limited to the matters delineated in Sec. 835.3 ..." It is clear from this provision that consent to a deposition is not a blanket waiver of objection to the substance of the inquiries. Furthermore, Llorente was not a defendant until he was ordered by the state court to testify against his wishes, at which time he promptly petitioned for removal. Until this order to testify, there was no basis for removal under Sec. 1442(a). We conclude that the district court's removal of this action was correct.

B. Dismissal of the Contempt Action

After deciding, upon reconsideration,...