White v. Wellington

627 F.2d 582, 23 Fair Empl. Prac. Cas. (BNA) 262, 29 Fed. R. Serv. 2d 1252, 1980 U.S. App. LEXIS 16016, 23 Empl. Prac. Dec. (CCH) 31,056

• Court: Court of Appeals for the Second Circuit
• Decided: July 2, 1980
• Docket: No. 911, Docket 79-7877
• Status: Published

Opinions

BRIEANT, District Judge:

Defendants-Appellants, state officials of Connecticut,¹ appeal from an order remanding this action from the United States District Court for the District of Connecticut (Ellen Bree Burns, J.) to the Superior Court of the State of Connecticut at New Haven. Removal had been effected under the “refusal to act” clause of the Civil Rights removal statute, 28 U.S.C. § 1443(2), originally enacted in 1863 in aid of Reconstruction.² The remand was granted “without prejudice to defendants to renew their motion at a later date.”

Because we believe appellants under the circumstances present here have an absolute right to remove the case, we reverse.

A brief summary of the facts will suffice. Plaintiff-Appellee White is a member of the Police Department of the City of New Haven, holding the rank of patrolman. Together with two employee organizations acting under state law as statutory representatives and bargaining agents for all New Haven police below the rank of Captain, he sues as class representative for all persons seeking promotion to the rank of sergeant in the New Haven Police Department. That position is within the classified civil service, ordinarily filled by competitive promotional examination, according to specific provisions of the city charter and civil service rules and regulations, all having the force of state law.

Plaintiffs allege that defendants have violated such state law, and threaten to con: tinue to do so. They seek declaratory and injunctive relief to enforce such compliance against defendants, who administer the relevant state laws and procedures and will effect the promotion of sergeants and others in the Department. The Intervening Plaintiffs-Appellees are persons aspiring to be appointed who also contend that defendants violated state law in their administration of the promotional examination and procedures.

Although no answer or responsive pleading had been filed in the state court, the position of appellants was disclosed to the district court in their timely petition for removal. Pleading conditionally in their amended petition for removal, they alleged that in conducting an examination for the position of Sergeant-Police Department, they had refused to do certain acts:³

“on the grounds that it would be inconsistent with Title VII of the Civil Rights Act of 1964, as amended, Title 42 United States Code, Section 2000e et seq., Title 42 United States Code Section 3766(e) (Law Enforcement Assistance Administration) and Title 31, United States Code, Section 1242 (Office of Revenue Sharing, U.S. Department of the Treasury), as well as Title 42, United States Code, Sections 1981 and 1983.”

The “refusal to act” clause of 28 U.S.C. § 1443(2) has seldom been invoked. As then District Judge Newman to this Court pointed out in his exhaustive and scholarly review of the subject, in Bridgeport Education Association v. Zinner, 415 F.Supp. 715 (D.Conn. 1976), the legislative history limits those able to remove thereunder to state officers, and those acting with or for them including local and municipal officials.⁴ These ordinarily will prefer to litigate in the state court. The situation here is unusual because the hiring practices of the New Haven Police Department have been under attack since about 1974 for claimed civil rights violations and there is pending in the District Court of Connecticut litigation involving the same or similar claims, the resolution of which may moot or control the instant case.⁵ Appellants alleged in their removal petition that they believed that the.claims alleged in the instant case could “best be resolved” by removal and consolidation with the pending federal civil rights litigation affecting the hiring and promotional practices of the same police department. Whether this is really so, or whether removal will merely result in delay and complications for both lawsuits is beside the point as the right to remove is statutory, jurisdictional and absolute, regardless of motivation, when it is found to exist.

Appellants are within the class of persons entitled to invoke the removal statute. We adopt generally the analysis of Bridgeport Ed. Ass’n. v. Zinner, supra, 415 F.Supp. at 722, which holds that the statute may be invoked when the removing defendants make a colorable claim that they are being sued for not acting “pursuant to a state law which, though facially neutral, would produce or perpetuate a racially discriminatory result as applied.” See also, Buffalo Teachers Association v. Board of Education, 477 F.Supp. 691, 693-94 (W.D.N.Y.1979). Clearly Title VII of the Civil Rights Act of 1964, relied upon in the petition to remove, qualifies under the statutory definition of § 1443.

The district court in its analysis of this case made no finding that the contention that state law, as applied, violates Title VII, was not a colorable claim. Nor could it do so, because the identical contention remains unresolved in companion litigation presently pending in the district.⁶ Rather, it remanded on what may be characterized as a narrow point of pleading, holding that defendants’:

“position is analogous to alternative pleading in that they argue the 1979 [Civil Service] examination did not violate local law, but, even if it did violate such law, enforcement thereof would be inconsistent with federal equal civil rights legislation. The court agrees with the plaintiffs that such a stance falls outside the purview of § 1443(2).”

The district court also held that:

“Implicit in a § 1443 removal is the belief in a conflict, however subtle or colorable, between state/local law and federal law. The state officers should at least be in a position to allege a definite inconsistency between their state law obligation and controlling federal law.”

While their case would be aided had they submitted their proposed answer to the complaint, we believe that appellants in their petition for removal do show a colorable claim that their conduct, if violative of state law, was justified by their federal statutory duty to avoid racial discrimination in hiring or promotion. The dissenting opinion in this case does not assert that there is no colorable claim alleged of conflict between state and federal law. We agree fully with Judge Meskill’s description of the “jurisdictional touchstone” as “a colorable conflict between state and federal law” leading to the removing defendant’s refusal to follow plaintiff’s interpretation of state law because of a good faith belief that to do so would violate federal law. That good faith belief is tested objectively, in that the claim to that effect of the removing defendant must be “colorable.” In effect, it is much the same claim being litigated in the long pending Silver Shields case. A strong presumption of regularity in their compliance with local civil service rules attaches to the acts of municipal officials in appointing and promoting police. This is so because unions and job aspirants have standing to insist on compliance. If, as is likely, during past years, New Haven has been in compliance with state law in regard thereto, and if, as the EEOC has found, there is reasonable cause to believe that there has been invidious racial discrimination in past police civil service appointments in that City, then the inference follows that the obligations imposed by federal civil rights legislation conflict with state civil service legislation. If so, the issues in this case are truly colorable and removal of this action is justified by the facts. As was held in Bridgeport Ed. Ass’n. v. Zinner, supra, 415 F.Supp. at 722:

“Several considerations persuade me to read no limitation into the nature of the inconsistency that the removing defendants must allege. First, the language of the ‘refusal’ clause is clear on this point. It requires only that the defendants’ refusal to act was ‘on the ground’ that acting would be inconsistent with federal law. The statute creates no stringent standard as to the nature of the inconsistency. It establishes a subjective test, to be met by evidence of what in fact was the reason for the defendants’ failure to act. To decide at this point whether the local civil service requirements are really inconsistent with Title VII or § 1981 in the circumstances of this case would be to make entitlement to removal depend on whether the defendants will prevail on the merits of their claim. The removing defendants have alleged at least a colorable claim that their refusal to act was on the ground that following the civil service requirements would be inconsistent with federal law. . . . That satisfies the terms of the statute.”

We see no reason why a removal petition cannot contain inconsistent allegations in the nature, here, of the traditional plea of confession and avoidance without the confession. In effect defendants wish to plead a general denial, that they violated or propose to violate state law, together with the affirmative defense, that if they did so, their refusal to obey state law was justified by their duty to refrain from violating federal civil rights laws. The petition to remove is analogous to a pleading. In federal courts, pursuant to Rule 8(e)(2), F.R.Civ.P., alternative, inconsistent claims and defenses may be alleged in a pleading. The modern rules of notice pleading “apply with as much vigor to petitions for removal as they do to other pleadings, which, according to Rule 8(f), F.R.Civ.P. “ ‘shall be so construed as to do substantial justice’.” Rachel v. Georgia, 342 F.2d 336, 340 (5th Cir. 1965), aff’d 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966).

In Willingham v. Morgan, 395 U.S. 402, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969), a removal situation arising under the analogous provisions of § 1442(a)(1), federal prison officials were sued in state court for alleged torts committed against a prisoner. The Supreme Court, citing Maryland v. Soper (No. 1), 270 U.S. 9, 46 S.Ct. 185, 70 L.Ed. 449 (1926), held (395 U.S. p. 408, 89 S.Ct. p. 1817) that “the federal officer, in order to secure removal, need not admit that he actually committed the charged offenses.” Logic, and the purpose of the removal statute dictate the same result here. Appellants need not admit that they have violated or intend to violate the state civil service laws, in reliance on Title VII, before they may remove this action. It is sufficient that the second amended complaint, read together with the amended removal petition, shows, as we find that it does, a color-able claim of inconsistent state/federal requirements.

While we reverse today for the foregoing reasons, we express no view as to what procedures may or should be followed on remand to the district court. It may be that this action should be consolidated with the prior related litigation, or that it should be stayed pending the outcome of that case, with leave to any party not before the court in that case, to apply for leave to intervene therein. The advisability or practicality of any such procedures will rest entirely within the sound discretion of the district court. Although we regard the right of removal here as regulated by statute, we note that were the order of remand to be held proper, if the state claims were tried in state court, the affirmative defenses based on federal statutes would probably have to be pleaded and tried at the same time likely resulting in a bar, by reason of collateral estoppel or res judicata, to any subsequent proceedings in the district court arising out of the same controversy. Removal of this case “at a later date” when the state court will have adjudicated all of the controversy would be of little benefit to appellants. See, Pan American Petroleum Corp. v. Superior Court of Delaware, 366 U.S. 656, 81 S.Ct. 1303, 6 L.Ed.2d 584 (1961); Abramson v. Pennwood Investment Corp., 392 F.2d 759, 762 (2d Cir. 1968); Quinn v. Aetna Life & Cas. Co., 616 F.2d 38 (2d Cir. 1980).⁷

In order that this and related litigation shall not be delayed unduly, the mandate shall issue forthwith.

1 . Defendant City of New Haven is a municipal corporation. The other defendants, and their responsibilities at the time the action was filed, are:

Sheila Wellington was President and Ronald Augustine, Joseph Herzyk, Thomas Reyes and Vincent Farricella were members of the Civil Service Board of the City;

Clarence Butcher was President and Joseph Adelizzi, Robert Buckholz, Michael Laguna and Morris Trachten were members of the Board of Police Commissioners of the City;

Frank Logue was the Mayor of New Haven; and

Peter Ferriola was the Director of Personnel for the City.

2 . That statute now provides in relevant part:

Ҥ 1443. Civil rights cases

Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending.

(2) For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law.” (Emphasis added).

3 . According to the second amended complaint, New Haven Civil Service regulations having the force of state law contemplate that promotions to sergeant in the police department shall be made pursuant to competitive examinations consisting of one or more of the following: written tests, oral tests, performance tests, mental aptitude tests and physical tests of fitness and agility. Such of these tests as the Board may order are to be treated as a single examination and graded on a scale of one hundred points. Promotions are required to be made pursuant to the traditional “one out of three” rule, from those standing highest on the list who shall have passed with a score not lower than seventy. On March 18, 1977 the U. S. Equal Employment Opportunity Commission (“EEOC”) found probable cause to believe that the promotional practices of New Haven, conducted pursuant to the same regulations in 1974, had resulted in discrimination against black persons because of their race in violation of § 703(a) of Title VII of the Civil Rights Act of 1964. That issue remains sub judice. See note 5, infra. The complaint in this case alleges that the defendants now intend to deviate from pri- or practice by (1) “assigning weights” to the scores achieved by applicants on separate phrases; (2) treating certain parts of the examination as “pass-fail” components, with failure of any single phase resulting in elimination; (3) not grading on a scale of 100 points, eliminating the passing requirement of 70 points; and (4) not appointing among those having the highest scores.

4 . This statute by its terms would appear to include federal officers within those who may remove. Cf. Greenwood v. Peacock, 384 U.S. 808, 824, 86 S.Ct. 1800, 1810, 16 L.Ed.2d 944 (1966) (Dictum). Such defendants however now have a right of removal greater in scope under 28 U.S.C. § 1442.

5 . Pending resolution of this appeal, Judge Burns stayed the remand of the instant case. The related case, New Haven County Silver Shields Inc. et al., v. The New Haven Department of Police Services et al., Civil Action N-77-329, is also assigned to Judge Bums. Plaintiffs in the Silver Shields case characterize their action as “charging past and present discrimination, based on race or other minority status, in recruitment, hiring, promotions, seniority, assignments and discipline in the New Haven Police Department.” Injunctive relief is sought, inter alia, regulating any “examination or other selection device in conjunction with hiring and promotion in the . . police department.” Since this appeal was heard, plaintiffs in this case and four of the twelve intervening plaintiffs have been granted leave by Judge Bums to intervene as parties in the Silver Shields case.

6 . The Silver Shields case. See note 5, supra.

7 . The case of England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964), cited in the dissenting opinion, is distinguishable. In England, federal subject matter jurisdiction was clear, but the district court abstained to permit concurrent state court litigation of state law issues. Thereafter, the state court purported to decide the federal constitutional issue. Here, the dissent’s position is that the defendants have not established their right to remove, and, thereby their right to litigate in federal court. That right was clearly established in the England case. See 375 U.S. at 422 n. 13, 84 S.Ct. at 468, n. 13.

Similarly, the case of Chance v. Board of Examiners, 561 F.2d 1079 (2d Cir. 1977), relied on in the dissent, fails to compel a deferral to state court jurisdiction here. Initially, it should be reemphasized that in our case, a statute permits the removal sought. Secondly, the Chance court deferred to the state only after a federal court had already ruled on the question by issuing a preliminary injunction. Chance was concerned with inadvisability of continuing federal court supervision of a new system adopted in response to that injunction. This Court noted that:

“In directing the District Court to relinquish jurisdiction over permanent prospective relief, we emphasize that the Examiners have agreed not to revert to the original examination system, that they are judicially es-topped from doing so, and that each of the plans under consideration is on its face, federally constitutional if properly implemented.” Id. at 1092.

Translated to the facts of our case, if the district court finds that federal law has been violated, the state is then free to institute a new procedure consistent with the Court’s findings. The state has not done that here. Nothing in Chance suggests that at this stage in the litigation the federal court must defer to the state. At some future time, the district court in this case could stay the action pending state reforms, or could remand part of the issues in its discretion under 28 U.S.C. § 1441(c).