Wade v. Burns

• Decision Date: 25 February 2019
• Docket Number: Civil Action No. 3:18-cv-1636 (CSH)
• Citation: 361 F.Supp.3d 306
• Parties: Katharine WADE, Insurance Commissioner, State of Connecticut, Complainant, v. Mark V. BURNS, an Individual, Respondent.
• Court: U.S. District Court — District of Connecticut

361 F.Supp.3d 306

Katharine WADE, Insurance Commissioner, State of Connecticut, Complainant,

v.Mark V. BURNS, an Individual, Respondent.

Civil Action No. 3:18-cv-1636 (CSH)

United States District Court, D. Connecticut.

Signed February 25, 2019

James W. Caley, Office of the Attorney General, Hartford, CT, for Complainant.

Mark Vane Burns, Westport, CT, pro se.

Brian J. Palmeri, Winget Spadafora & Schwartzberg LLP, Stamford, CT, for Respondent.

RULING ON COMMISSIONER WADE'S MOTION TO REMAND

CHARLES S. HAIGHT, JR., Senior United States District JudgeKatharine Wade, the Insurance Commissioner for the State of Connecticut, issued an administrative complaint returnable in that agency against Mark Burns, alleging that Burns violated certain Connecticut statutes and agency regulations as a licensed participant in the insurance industry. Doc. 1-1.

Burns removed the case to this Court. He purportedly based that removal on the authority of 28 U.S.C. § 1442(a)(1), as well as 28 U.S.C. §§ 1331 and 1446. Noting that 28 U.S.C. 1442 provides only for removal of an action from a state court , this Court sua sponte directed the Commissioner to file a response which addressed the propriety of Burns's removal of the complaint against him from a state agency .

The Commissioner has now filed a motion to remand the proceeding back to her for adjudication by the agency. Burns opposes the motion and contends that the action falls within this Court's jurisdiction. This Ruling resolves the motion.

I. BACKGROUND

The Commissioner for Connecticut's Department of Insurance filed an administrative complaint against Burns on August 9, 2018, alleging specific acts that would constitute cause for the revocation or suspension of "licenses issued by the Insurance Department and/or the imposition of fines and other penalties." Doc. 1-1 at 2, 9. The complaint accuses Burns of making false representations, forging a customer's signature, becoming aggressive with another customer, and engaging in other violations of Connecticut state law while in the business of selling Medicare-adjacent policies known as Medicare Advantage ("MA") programs. Id. at 2–8; Notice ¶ 2, 6. Burns received the complaint on August 13, 2018. Notice ¶ 5.

On September 28, 2018, Burns filed a "Notice of Removal of Administrative Action" in this Court, arguing that the Commissioner's action against Burns was removable pursuant to 28 U.S.C. § 1442(a)(1), which allows for actions in state court against federal officers or agencies to be removed to federal court. Id. ¶ 1; 28 U.S.C. 1442 (2018). Burns alleges that this statute applies to him because he was acting "under color" of federal law "in the presentation and marketing of the MA Program." Notice ¶ 1. He alternatively asserts the action is removable "because it implicates significant federal issues, to wit, Congressional preemption of any state regulation in the matters alleged." Id.

On October 2, 2018, this Court issued a memorandum and order. Doc. 6. The Court questioned whether 28 U.S.C. § 1442 allowed for removal of this proceeding to federal court, given that the statute only provided for removal from a state court, not from an administrative agency. Id. at 2. Consequently, the order directed the Commissioner to answer this question in her response to Burns's removal papers. Id. at 3. The Commissioner then filed a motion to remand proceedings back to her pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure and 28 U.S.C. § 1447(c), asserting that removal to federal court was improper and, in any event, untimely. Docs. 9 at 1, 9-1 ("Comm. Mem.") at 2.

II. DISCUSSION

A. Meaning of "State Court"

The applicability of 28 U.S.C. § 1442, also known as the federal officer removal statute, to this action turns on (1) whether the Connecticut Department of Insurance constitutes a "state court" under the statute, and (2) whether Burns is a federal officer within the meaning of the statute. Section 1442 provides:

(a) A civil action or criminal prosecution that is commenced in a State court and that is against or directed to any of the following 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) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue ....

28 U.S.C. § 1442(a)(1) (2018) (emphasis added).

Section 1441, the general removal statute, similarly governs "any civil action brought in a State court ." 28 U.S.C. § 1441(a) (2018) (emphasis added). The Court is unable to find precedent indicating that "State court" has different definitions across the various removal statutes, and so its analysis here will rely upon cases that explore the meaning of the term within Section 1441 as well.¹

The Second Circuit has not directly addressed the question of whether a particular state agency qualifies as a state court for the purposes of removal. New York State Div. of Human Rights on Complaint of Housing Opportunities Made Equal, Inc. v. Folino , No. 11-CV-569A, 2011 WL 11068867, at *2 (W.D.N.Y. July 11, 2011) ("Absent explicit guidance from the Court of Appeals for the Second Circuit, this Court adopts the reasoning from the Ninth and Tenth Circuits as persuasive."). This district court must accordingly turn to other courts for specific authority. As the Commissioner points out, the circuits are split on this question. Comm. Mem. at 6.

Some circuits rely upon a "functional test."² Under the functional test, a court's approach is to "evaluate the functions, powers, and procedures of the state tribunal and consider those factors along with the respective state and federal interests in the subject matter and in the provision of a forum." Floeter v. C.W. Transport, Inc. , 597 F.2d 1100, 1102 (7th Cir. 1979) (citing Volkswagen de Puerto Rico, Inc. v. Puerto Rico Labor Relations Bd. , 454 F.2d 38, 44 (1st Cir. 1972) ). Burns advocates for such an approach and cites Upshur Cty. v. Rich , 135 U.S. 467, 477, 10 S.Ct. 651, 34 L.Ed. 196 (1890), as support. Doc. 10 ("Burns Mem.") at 28. In Upshur , the Supreme Court held that a West Virginia county court was "not a judicial body, invested with judicial functions, except in the matters of probate, but is the executive or administrative board," and so the county court proceedings could not properly be removed to the federal circuit court. 135 U.S. at 477, 10 S.Ct. 651. While Upshur certainly uses a functional approach, the case predates the enactment and subsequent revisions of the removal statutes at issue here by a few decades.³ See Act of June 25, 1948, Pub. L. No. 80-773, ch. 89, 62 Stat. 937, 938 (1948). The linear sequence of time thus excludes Upshur as binding precedent on the question of how exactly to interpret "State court" within the meaning of 28 U.S.C. §§ 1441, 1442.

Other circuits use the "plain meaning" approach. See Porter Trust v. Rural Water Sewer & Solid Waste Mgmt. Dist. No. 1 , 607 F.3d 1251, 1254–55 (10th Cir. 2010) ; Ore. Bureau of Labor & Indus. ex rel. Richardson v. U.S. W. Commc'ns, Inc. , 288 F.3d 414, 417–18 (9th Cir. 2002) ("The plain language of 28 U.S.C. § 1441(a) limits removal to cases pending before a ‘state court’ .... The term is clear and consistent with the overall statutory scheme for removals because it is used repeatedly throughout the removal statutes and is the only term used in reference to the tribunal from which removal may be taken.").

The only case in the Second Circuit to consider this question chose to use plain meaning as well. New York State Div. of Human Rights on Complaint of Housing Opportunities Made Equal, Inc. v. Folino , No. 11-CV-569A, 2011 WL 11068867, at *2 (W.D.N.Y. July 11, 2011). Although the Folino court was interpreting the general removal statute, in the case at bar this Court will follow its sister district court because I consider Folino to be persuasive, and for the added benefit of intra-circuit harmony in the application of plain meaning across the broad spectrum of federal removal statutes.

1. Plain Meaning

"Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. Our inquiry must cease if the statutory language is unambiguous and the statutory scheme is coherent and consistent." Robinson v. Shell Oil Co. , 519 U.S. 337, 340, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) (internal quotation marks and citations omitted).

The plain language of 28 U.S.C. § 1442(a) limits removals to "civil action[s]" and "criminal prosecution[s]" brought in "a State court." The statute makes no mention of administrative agencies or administrative proceedings. Nor does it use ambiguous language such as "tribunal" or "decision-making body" that would signal legislators' intent to allow "State court" to be interpreted more broadly. See Folino , 2011 WL 11068867, at *2. This does not appear to be an oversight. In fact, the statute provides a definition of sorts for "State court," but it only allows for geographical flexibility, not functional flexibility: "The term ‘State court’ includes the Superior Court of the District of Columbia, a court of a United States territory or insular possession, and a tribal court." 28 U.S.C. § 1442(d)(6) (2018). "Of all of the different governmental entities at the state and local level that make and enforce decisions, Congress chose only one type of entity—state courts—to subject to the federal removal process." Folino , 2011 WL 11068867, at *2.

The Department of Insurance is not a state court as understood within the State of Connecticut's court system. See About Connecticut Courts,...