Kolibash v. Committee on Legal Ethics of West Virginia Bar, 1337

• Citation: 872 F.2d 571
• Decision Date: 10 May 1989
• Docket Number: No. 1337,No. 88-3871,1337,88-3871
• Parties: William KOLIBASH, Member of the West Virginia State Bar, (Casebefore the Committee on Legal Ethics of the West Virginia State Bar), Appellant, v. COMMITTEE ON LEGAL ETHICS OF the WEST VIRGINIA BAR, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 571

872 F.2d 571

57 USLW 2642

William KOLIBASH, Member of the West Virginia State Bar,

(Case No. 1337 before the Committee on Legal

Ethics of the West Virginia State Bar), Appellant, v. COMMITTEE ON LEGAL ETHICS OF the WEST VIRGINIA BAR, Appellee.

No. 88-3871.

United States Court of Appeals,

Fourth Circuit.

Argued Dec. 9, 1988.

Decided March 7, 1989.

Rehearing and Rehearing In Banc Denied May 10, 1989.

David Alan Faber, Sp. Asst. U.S. Atty. (Spilman, Thomas, Battle & Klostermeyer, Charleston, W.Va., on brief) for appellant.

David Paul Cleek, Sp. Counsel (Jack M. Marden, Bar Counsel, West Virginia State Bar, Charleston, W.Va., on brief) for appellee.

Before WILKINSON, Circuit Judge, and HOWARD, United States District Judge for the Eastern District of North Carolina, sitting by designation, and MERHIGE, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

CORRECTED OPINION

WILKINSON, Circuit Judge:

This case concerns the question of whether a West Virginia State Bar Association disciplinary proceeding brought against the United States Attorney for the Northern District of West Virginia may be removed to federal district court pursuant to the federal officer removal statute, 28 U.S.C. Sec. 1442. We hold that removal of this action satisfied the statutory requirements of Sec. 1442 and that the district court erred by divesting itself of jurisdiction over this matter.

I.

The case began when John B. Cain complained to the West Virginia State Bar Association that David A. Jividen had engaged in professional misconduct while serving as an Assistant United States Attorney for the Northern District of West Virginia. Cain alleged that Jividen had represented Cain during a federal grand jury investigation, and then, after becoming an Assistant United States Attorney, had participated on the government's side of the case by questioning grand jury witnesses. Cain was tried and convicted on federal drug charges; he raised Jividen's alleged conflict of interest in a pretrial motion to dismiss the indictment against him. This court reversed Cain's conviction and dismissed the indictment, holding that Jividen's participation had violated Cain's due process rights. United States v. Schell, 775 F.2d 559, 565-66 (4th Cir.1985).

The West Virginia State Bar Association then began to investigate Jividen's conduct and expanded the scope of its inquiry to include his supervisor--William A. Kolibash, United States Attorney for the Northern District of West Virginia. On April 30, 1987, the State Bar Committee on Legal Ethics formally accused Kolibash of failing to adequately supervise Jividen, and of failing to disclose pertinent information during the trial court's investigation of Cain's conflict of interest charges against Jividen. Kolibash maintains that he has done nothing wrong, and that he instructed Jividen to isolate himself from cases involving individuals that Jividen previously had represented. The State Bar also accused Jividen of professional misconduct.

On May 6, 1987, Kolibash and Jividen petitioned to remove the state disciplinary proceeding to the United States District Court for the Southern District of West Virginia pursuant to 28 U.S.C. Sec. 1442. On May 22, 1987, the Committee on Legal Ethics filed a motion to remand the action to the state system pursuant to 28 U.S.C. Sec. 1447. Jividen subsequently withdrew his petition for removal, and on April 21, 1988, the district court remanded the proceedings, declaring that "licensure of professionals is basically a state function." The district court stated that members of the State Bar "who serve as federal officials are no less subject to the requirements of the Code of Professional Responsibility that is the cornerstone of licensure to practice the profession" in West Virginia. The district court then declared that Kolibash would be accorded a fair and just adjudication in the state system.

The State Bar's charges against Jividen are not relevant to this appeal. Kolibash however, seeks reversal of the district court's remand order. In the alternative, Kolibash petitions this court to grant a writ of mandamus directing the district court to retain jurisdiction over this action.

II.

Generally, a district court order remanding a case to the state court from which it was removed is "not reviewable on appeal or otherwise." 28 U.S.C. Sec. 1447(d). The State Bar contends that 28 U.S.C. Sec. 1447(d) bars review of the district court's remand order and that Kolibash's appeal therefore should be dismissed. We disagree.

Section 1447(d) does not bar review in all cases. See Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976). Sections 1447(c) and 1447(d) are in pari materia and are to be construed accordingly. A remand order is therefore immune from review only if it invokes the grounds specified in Sec. 1447(c)--i.e., "that removal was improvident and without jurisdiction." Id. at 345-46, 96 S.Ct. at 590-91. See also Three J Farms, Inc. v. Alton Box Board Co., 609 F.2d 112, 115-16 (4th Cir.1979).

Although a district court is not required to invoke the specific language of Sec. 1447(c), see Gravitt v. Southwestern Bell Telephone Co., 430 U.S. 723, 97 S.Ct. 1439, 52 L.Ed.2d 1 (1977), the court's failure in this case to pose the propriety of remand in the terms of the statute is a factor in determining whether its order is reviewable. See Karl Koch Erecting Co. v. New York Convention Center Dev. Corp., 838 F.2d 656, 658 (2d Cir.1988). Here, the district court did not apply the Sec. 1447 standard. It focused instead on the state interest in regulating and policing professional misconduct. This consideration, however, is not dispositive in determining whether the state disciplinary proceeding was improvidently removed under the federal officer removal statute. The remand order represented a discretionary decision by the district court not to hear a certain case on grounds of public policy and is therefore reviewable on appeal. As the Supreme Court recognized in Thermtron, Congress did not intend "to extend carte blanche authority to the district courts to revise the federal statutes governing removal by remanding cases on grounds that seem justifiable to them but which are not recognized by the controlling statute." 423 U.S. at 351, 96 S.Ct. at 593.

III.

The State Bar next contends that removal of the state disciplinary proceeding was improvidently made and that the district court therefore properly divested itself of jurisdiction. We disagree. In cases such as the present appeal, which satisfy the statutory requirements, a federal forum has been guaranteed to federal officers by the federal officer removal statute, 28 U.S.C. Sec. 1442.

The federal officer removal statute is the culmination of a long history of removal provisions designed to protect federal officers in the performance of their federal duties. ¹ See, Mesa v. California, --- U.S. ----, ----, 109 S.Ct. 959, 963, 103 L.Ed.2d 99 (1989); Willingham v. Morgan, 395 U.S. 402, 405-07, 89 S.Ct. 1813, 1815-16, 23 L.Ed.2d 396 (1969). Section 3 of the Force Act of 1833, Act of March 2, 1833, 4 Stat. 632, 633-34, for example, is the historical antecedent of Sec. 1442 and was the federal government's response to South Carolina's attempt to "nullify" the national revenue laws. Gay v. Ruff, 292 U.S. 25, 32, 54 S.Ct. 608, 611, 78 L.Ed. 1099 (1934). The Force Act was passed to prevent "paralysis" of federal operations by protecting federal revenue agents from state court prosecutions for violations of state law. See also Act of February 4, 1815, Sec. 8, 3 Stat. 195, 198. In 1875, the right of removal was extended to members of both houses of Congress. Act of March 3, 1875, Sec. 8, 18 Stat. 371, 401 (codified at 28 U.S.C. Sec. 1442(a)(4)). In 1916, it was extended to officers of the United States courts, Act of August 23, 1916, 39 Stat. 532 (codified at 28 U.S.C. Sec. 1442(a)(3)); and in the Judicial Code of 1948, the removal statute was extended to encompass all federal officers and their agents. See H.R.Rep. No. 308, 80th Cong., 1st Sess. (1947). See also Gay, 292 U.S. at 32-33 n. 8, 54 S.Ct. at 611-12 n. 8.

While the scope of the federal officer removal statute has broadened, its underlying rationale remains unchanged: "Congress has decided that federal officers, and indeed the Federal Government itself, require the protection of a federal forum." Willingham, 395 U.S. at 407, 89 S.Ct. at 1816. A federal officer's right of removal under Sec. 1442(a)(1) is therefore available whenever a suit in a state court is for any act "under color" of federal office--i.e., whenever a federal defense can be alleged by the federal officer seeking removal. Mesa, --- U.S. at ----, 109 S.Ct. at 962. The removal statute clearly " 'cover[s] all cases where federal officers can raise a colorable defense arising out of their duty to enforce federal law.... In fact, one of the most important reasons for removal is to have the validity of the defense of official immunity tried in a federal court.' " Id. at ----, 109 S.Ct. at 966, quoting Willingham, 395 U.S. at 406-07, 89 S.Ct. at 1815-16.

Although 28 U.S.C. Sec. 1442(a) generally requires the specific averment of a federal defense, Mesa, --- U.S. at ----, 109 S.Ct. at 969, the Supreme Court has explicitly left unresolved the question of whether "careful pleading, demonstrating the close connection between the state prosecution and the federal officer's performance of his duty, might adequately replace the specific averment of a federal defense." Id. at ----, 109 S.Ct. at 966. In such circumstances, pleading by traverse may warrant removal. We think that this is such a case.

In his removal petition, for example, Kolibash demonstrates that his alleged misconduct grew out of acts performed by him in the course of his duties as a federal officer. As the district court recognized, the State Bar's...