People of State of Cal. v. Mesa

• Decision Date: 26 March 1987
• Docket Number: 86-1500,Nos. 86-1525,s. 86-1525
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: PEOPLE OF the STATE OF CALIFORNIA, Plaintiff-Appellant, v. Kathryn Isabella MESA, Defendant-Appellee. PEOPLE OF the STATE OF CALIFORNIA, Plaintiff-Appellant, v. Shabbir A. EBRAHIM, a/k/a Shabbir Azam, Defendant-Appellee.

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813 F.2d 960

PEOPLE OF the STATE OF CALIFORNIA, Plaintiff-Appellant, v. Kathryn Isabella MESA, Defendant-Appellee.

PEOPLE OF the STATE OF CALIFORNIA, Plaintiff-Appellant, v. Shabbir A. EBRAHIM, a/k/a Shabbir Azam, Defendant-Appellee.

Nos. 86-1525, 86-1500.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 13, 1987.

Decided March 26, 1987.

Leo Himmelsbach and Kenneth Rosenblatt, San Jose, Cal., for plaintiff-appellant.

Richard K. Willard, Joseph P. Russoniello, Barbara L. Herwig and Mack A. Player, Washington, D.C., for defendant-appellee.

Petitions from the United States District Court for the Northern District of California.

Before MERRILL, NELSON and NOONAN, Circuit Judges.

MERRILL, Circuit Judge:

These two cases ¹ pose a fascinating issue of federalism: can a federal postal employee remove his state criminal prosecution to federal court when no issue of federal law will arise at trial and when the only federal component of the case is that he was on duty when the relevant acts allegedly occurred?

Mesa and Ebrahim are United States mail carriers charged with violations of state law ² that allegedly occurred while they were on duty driving their mail trucks. Both defendants removed their cases to federal court pursuant to 28 U.S.C. Sec. 1442(a)(1), which allows removal by federal officers acting "under color of [their] office." ³ The district court denied California's motions to remand the cases to state court. Although neither defendant has yet been tried in federal court, California asks this court--either by way of interlocutory appeal or a writ of mandamus--to order the cases remanded to state court. We find that the collateral order doctrine does not permit interlocutory review in these cases. Rather, we hold that a writ of mandamus is appropriate to compel the district court to remand these cases to state court.

I. COLLATERAL ORDER DOCTRINE

This court's appellate jurisdiction is generally limited to review of "final decisions of the district courts." 28 U.S.C. Sec. 1291. The collateral order doctrine, established in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), is a narrow exception to the final judgment rule. In criminal cases, the exception permits appeal of interlocutory orders that satisfy three requirements. First, the order must " 'constitute[ ] a complete, formal, and, in the trial court, final rejection of' the claim the order addresses." United States v. Harper, 729 F.2d 1216, 1220 (9th Cir.1984) (quoting Abney v. United States, 431 U.S. 651, 659, 97 S.Ct. 2034, 2040, 52 L.Ed.2d 651 (1977)). Second, the claim must be " 'collateral to, and separable from' " the issue of the defendant's guilt. Id. And third, the order must involve rights that "would be irretrievably lost if review were postponed until trial is completed." Flanagan v. United States, 465 U.S. 259, 266, 104 S.Ct. 1051, 1055, 79 L.Ed.2d 288 (1984). The Supreme Court has interpreted the collateral order doctrine with the "utmost strictness" in criminal cases. Id. at 265. ⁴

Although the orders at issue here clearly satisfy the second requirement, the first and third requirements are not met. First, the orders denying the motions to remand to state court are not final rejections of the state's request for remand because 28 U.S.C. Sec. 1447(c) (1982) provides that the district court shall remand the case "[i]f at any time before final judgment it appears that the case was removed improvidently and without jurisdiction." Hence, the district court's initial decisions to deny the motions did not preclude the possibility of a remand. In addition, the third requirement is not clearly met because, as is discussed more fully in the following section, the state may appeal an acquittal on the ground that the case was improperly removed. Therefore, review of the denial of the motions to remand under the collateral order doctrine is inappropriate in these cases.

II. MANDAMUS

This court has the power to issue a writ of mandamus in aid of its appellate jurisdiction. See Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 25, 63 S.Ct. 938, 941, 87 L.Ed.2d 1185 (1943); 28 U.S.C. Sec. 1651 (1982). That power unquestionably exists here, because this court would have jurisdiction over appeals from final judgments in these cases. See United States v. Harper, 729 F.2d 1216, 1221 (9th Cir.1984).

Because of the strong policy against piecemeal review embodied in the final judgment rule (particularly in criminal cases), the question is whether discretionary review by way of a writ of mandamus is appropriate. As a general matter, the Supreme Court has described the writ as "an 'extraordinary remedy' that should only be invoked in 'exceptional circumstances.' " Id. (quoting Will v. United States, 389 U.S. 90, 95, 88 S.Ct. 269, 273, 19 L.Ed.2d 305 (1967)).

Nonetheless, the Supreme Court has approved appellate grants of mandamus in cases very similar to those before us. In Maryland v. Soper (No. 1), 270 U.S. 9, 46 S.Ct. 185, 70 L.Ed. 449 (1926), four prohibition agents and their chauffeur sought to remove their state murder prosecutions to federal court under a statutory predecessor of 28 U.S.C. Sec. 1442, and the district judge denied Maryland's motion to quash the petition for removal. Under these "exceptional circumstances," id. at 30, 46 S.Ct. at 189, the Supreme Court held that mandamus was appropriate because of the delicate issue of federal-state relations raised: "the jurisdiction of the courts of a State to try offenses against its own laws and in violation of its own peace and dignity is wrested from it by the order of an inferior federal court." Id. at 29, 46 S.Ct. at 189; cf. Kollsman v. City of Los Angeles, 737 F.2d 830, 833 n. 5 (9th Cir.1984) (noting that a district court's decision not to abstain under the Pullman doctrine is reviewable through mandamus), cert. denied, 469 U.S. 1211, 105 S.Ct. 1179, 84 L.Ed.2d 327 (1985). The Court also noted that mandamus was the only procedure whereby the state could obtain appellate review. See Soper, 270 U.S. at 30, 46 S.Ct. at 189. In other cases, the Supreme Court has taken a similar approach to mandamus in criminal removal cases. Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 31 n. 5, 63 S.Ct. 938, 944 n. 5, 87 L.Ed. 1185 (1943); Colorado v. Symes, 286 U.S. 510, 52 S.Ct. 635, 76 L.Ed. 1253 (1932) (following Soper (No. 1) ); accord Pennsylvania v. Newcomer, 618 F.2d 246, 248-49 (3rd Cir.1980); cf. Virginia v. Rives, 100 U.S. (10 Otto) 313, 25 L.Ed. 667 (1879) (issuing writ of mandamus to review removal under civil rights removal statute).

The crux of these authorities--that federalism concerns justify review by mandamus--applies directly to the cases before us. California's jurisdiction to try traffic infractions and misdemeanor-manslaughter charges has been "wrested" from it by the district court's orders. There is an argument, however, that the force of these early Supreme Court decisions has been partially deflected by its decision in Arizona v. Manypenny, 451 U.S. 232, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981), which, together with authorizing state law, would permit an appeal by the state after an acquittal in federal court if the case was improperly removed to federal court. ⁵ Thus, mandamus may not be the only procedure whereby California could obtain appellate review of the propriety of the removals.

We find that the limited availability of post-trial review of the removals does not deprive these cases of the exceptional character necessary for mandamus relief. Under Manypenny and pertinent state law, California will be able to appeal an acquittal on the grounds that the defendant improperly removed his prosecution to federal court. Yet if the postal workers are convicted in federal court, California will be in an odd position. California could let the convictions stand, but then its asserted right to try the defendants in its own courts would remain unfulfilled. To vindicate this sovereign right, California might appeal the federal court convictions in order to be able to retry the defendants in its own courts. But it would seem perverse to require the state to prosecute in federal court only so it can have its convictions reversed on appeal. ⁶ Mandamus is appropriate to avoid this awkward result.

Moreover, after the great expenditure of judicial resources necessary to try and acquit a defendant in federal court, an appellate court may well be reluctant to second-guess the district court's decision concerning the often close question of the propriety of removal under the "under color of" requirement. In addition, although the defendant may be said to have brought this situation upon himself by removing to federal court in the first place, the appellate court may nonetheless cautiously approach the prospect of putting him through the ordeal of trial a second time, even if jeopardy technically would not have attached in the federal trial. See Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-24, 2 L.Ed.2d 199 (1957). These practical considerations may tend to erode the state's ability to protect its interest in trying defendants in state court. Finally, another argument in favor of mandamus is that the cases raise "new and important problems" and "issues of first impression" that warrant extraordinary treatment. Harper, 729 F.2d at 1222.

III. REMOVAL

A. The Federal Officer Removal Statute and Its History

The removal issue in these cases cannot be properly understood without at least a quick glimpse at the history of the federal officer removal statute, currently codified at 28 U.S.C. Sec. 1442(a)(1). ⁷ The earliest such removal provision was enacted as part of the federal reaction to New England's opposition to the trade embargo declared during the War of 1812. The statute, which granted customs officials authority to board vessels in order to collect duties, allowed those officials to remove ...