Agosto v. Barcelo

Decision Date27 September 1984
Docket NumberCiv. No. 84-2186(PG).
Citation594 F. Supp. 1390
PartiesMiguel A. Hernandez AGOSTO, President of the Senate of Puerto Rico, Plaintiff, v. Carlos Romero BARCELO, Governor of the Commonwealth of Puerto Rico, Defendant.
CourtU.S. District Court — District of Puerto Rico

Amancio Arias Cestero, Santurce, P.R., Hughes, Hubbard & Reed, Washington, D.C., for defendant.

Marcos Ramirez, Hato Rey, P.R., for plaintiff.


PEREZ-GIMENEZ, District Judge.

The plaintiff has moved for a remand of this case to the Superior Court of Puerto Rico. The defendant (hereafter "the Governor") has opposed the motion, and the Court held a hearing on the issues on September 7, 1984. Having carefully considered the briefs and arguments for both sides, the Court concludes that this case was properly removed and denies the motion to remand.


This case grows out of the killing of two men by the police at Cerro Maravilla on July 25, 1978. Charges of police misconduct and of an official cover-up have spawned various investigations and criminal indictments. Among the investigations is one being conducted by the Judiciary Committee of the Senate of Puerto Rico. That investigation began in 1981 pursuant to Senate Resolution No. 91, which directed the Committee (1) to submit to the Senate recommendations for legislation and (2) to report to the Senate on the Cerro Maravilla incident and recommend how best the Senate could disseminate the information to the public. The Committee's investigation has included dramatic hearings televised throughout Puerto Rico.

On April 27, 1984, the Committee, through its Chairman, served a subpoena on the Governor of Puerto Rico demanding the production of various documents and other information. The subpoena set a return date of May 11, 1984.

On May 11, 1984, Virgilio Ramos González, counsel to the Governor, wrote to the Committee on behalf of the Governor. He indicated that the Governor refused to comply with the subpoena on a number of different grounds. (The grounds were described in detail in a lengthy opinion from the Secretary of Justice to the Governor, dated May 9, 1984, which Mr. Ramos attached to his May 11 letter.) First, through Mr. Ramos, the Governor asserted that he and his aides had already produced much of the information subpoenaed in response to earlier requests from the Committee. To the degree the subpoena asked for new material, the Governor objected that it sought information that was irrelevant to the investigation and that the demand for documents was unreasonable, oppressive, arbitrary and burdensome. Second, the Governor contended that the subpoena has been improperly issued because, inter alia, the Committee has prevented Senators from the parliamentary minority party from participating in the Committee's proceedings and because the Committee allegedly lacks the authority to compel compliance with a subpoena once the Legislative Assembly has adjourned sine die in anticipation of a general election, which it did on April 30. The Committee's authority lapsed, the Governor asserted, both because the investigation could no longer serve the purposes for which it had been authorized and because the Senate lacked the power to extend the life of one of its committees past such an adjournment. Third, and most importantly for present purposes, the Governor asserted that the Committee lacked authority under the "separation of powers" to demand that he produce confidential information and that the subpoena sought material protected by executive privilege and other similar privileges of the executive branch.

On May 14, 1984, the Committee (allegedly still acting without allowing any members of the minority party to participate) passed a resolution calling upon the plaintiff, in his capacity as President of the Puerto Rico Senate, to seek judicial enforcement of the April 27 subpoena. However, it was not until August 20, 1984, that the plaintiff petitioned the Superior Court of Puerto Rico in an effort to enforce the subpoena. The petition was considered on an ex parte basis, and on August 21, 1984, the Superior Court issued an ex parte order directing the Governor to comply with the subpoena in full by August 30, 1984.

Immediately upon notification of those proceedings and of the court order against him, the Governor filed a petition removing the case to this Court. He also filed a motion seeking a stay of the August 21 order pending submission of a motion to vacate that order. The plaintiff then filed a motion to remand this case to the Superior Court. On August 28, this Court issued an Order to Show Cause, directing the Governor to show why the case should not be remanded to the Superior Court. In that same Order, the Court stayed the Superior Court's August 21 order until this Court "has had an opportunity to hear arguments of counsel and consider the matters presented to it by this case." The Governor filed a brief in opposition to remand on September 5, and the hearing was held as scheduled on September 7, at which both parties appeared through counsel.


Section 1441 of Title 28, United States Code, governs the removal of this case. Section 1441(a) states that:

"any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant ... to the district court of the United States for the district and division embracing the place where such action is pending."1

Section 1441(b) reiterates that

"any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties."

Two issues, therefore, must be addressed in determining whether this case was properly removed from the Superior Court or must be remanded to that court. First, whether the plaintiff's petition for enforcement of a legislative subpoena is a "civil action" within the meaning of Section 1441. Second, whether this is a case "arising under" the laws of the United States so that this Court would have had original jurisdiction if the plaintiff had chosen to commence the case here. Because the Court answers both questions in the affirmative, it concludes that removal was proper.


Although the Court has not found any case squarely on point, and the parties have not referred the Court to any precise precedent, the Court concludes that Congress intended to use the term "civil action" in Section 1441(a) in its broadest possible scope. Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3721 at 524 (1976). Indeed, the plaintiff here apparently does not deny that his subpoena enforcement petition is a "civil action" for this purpose.

As used in Section 1441, "`civil action' is a civil suit." Stoll v. Hawkeye Casualty Co., 185 F.2d 96, 98 (8th Cir.1950). The term "suit,", in turn,

"is certainly a very comprehensive one, and is understood to apply to any proceeding in a court of justice, by which an individual pursues that remedy in a court of justice which the law affords him. The modes of proceeding may be various, but if a right is litigated between parties in a court of justice, the proceeding by which the decision of the court is sought is a suit." Weston v. City of Charleston, 2 Pet. 449, 464, 7 L.Ed. 481 (1829) (per Marshall, C.J.).

This case presents just such an instance in which the plaintiff seeks a remedy, enforcement of a subpoena, in a civil proceeding; that application requires adjudication of a claim of right, the right to compel the production of the documents in question.

The fact that the proceeding began on an ex parte basis does not affect this analysis. The initial proceeding in this case may have occurred on an ex parte basis, but the action eventually requires a confrontation between the plaintiff and defendant (on a motion to vacate or a contempt proceeding), and that confrontation would involve an adjudication of their respective rights in a civil proceeding. Plaintiff's petition, therefore, falls within the meaning of "civil action."

The removal statute, in fact, expressly contemplates the removal of such a matter. Section 1446(b) states that a petition for removal "of a civil action or proceeding" must be filed by the defendant within thirty days from the time that the defendant receives a copy of the "initial pleading," "through service or otherwise," or receives "service of summons" without the initial pleading where that is permitted by the local courts. The statute, therefore, expressly envisions cases where the defendant has not yet had an opportunity to appear at the time of removal or has not yet even been served with process or with a pleading.

This analysis is confirmed by the courts' consistent recognition that proceedings which begin on an ex parte basis are "civil actions." First, it is well settled that a "civil action" under the federal-question jurisdiction statute, 28 U.S.C. § 1331, includes proceedings in which an ex parte order such as a temporary restraining order or a writ of attachment issues before the defendant has had an opportunity to respond to the "initial pleading" or even to appear. The provisions of the removal statute relied upon in this case are essentially in pari materia with the federal-question original jurisdiction provisions of 28 U.S.C. § 1331. Debevoise v. Rutland Railway Corp., 291 F.2d 379, 380 (2d Cir.), cert. denied, 368 U.S. 876, 82 S.Ct. 123, 7 L.Ed.2d 77 (1961); see, Wright, Miller & Cooper, supra, § 3722 at 556. The Supreme Court has repeatedly held that Congress made the removal statute co-extensive with the grant of federal-question jurisdiction. See, e.g., Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, ___, 103 S.Ct. 2841, 2845, 77 L.Ed.2d 420 (1983). Furthermore, when a term is used in different statutes but in the same...

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3 cases
  • Simmons v. State of Cal., Dept. of Indus. Rel.
    • United States
    • U.S. District Court — Eastern District of California
    • June 20, 1990
    ...not merely" claims or parties. Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371, 1376 (5th Cir.1980); see also Agosto v. Barcelo, 594 F.Supp. 1390, 1392 (D.P.R.1984) ("As used in Section 1441 `civil action' is a civil suit"). Thus, the removal statute does not countenance the removal o......
  • Hernandez-Agosto v. Romero-Barcelo
    • United States
    • U.S. Court of Appeals — First Circuit
    • October 23, 1984
    ...District Court for the District of Puerto Rico. See 28 U.S.C. Sec. 1441. That federal court refused the Senate's request for remand. 594 F.Supp. 1390. See 28 U.S.C. Sec. 1447(c). The federal court stayed the Commonwealth court's compliance order pending further federal proceedings. The Sena......
  • INTERPRETING 11 USC § 110, General Order No. 96-3.
    • United States
    • U.S. District Court — Central District of California
    • March 6, 1996
    ...§ 3721 2d ed. 1985. A civil action is an adversarial court proceeding in which one party seeks relief against another. Agosto v. Barcelo, 594 F.Supp. 1390 (D.P.R.1984). Bankruptcy courts handle thousands of adversary proceedings and each of them appears to meet the definitional requirements......
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