People of the State of California v. Kathryn Isabella Mesa, People of the State of California v. Shabbir A. Ebrahim, A/K/A Shabbir Azam

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. § 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…

dissenting:

We are called to interpret an act of Congress. The act provides that “a civil action or a criminal prosecution” brought “against any officer of the United States ... or person acting under him, for any act under color of such office” may be removed by the defendants from the state to the federal court. 62 Stat. 938 (1948), 28 U.S.C. § 1442 (a)(1).

The statute embraces not only “officers of the United States” but all their subordinates, officers or not. The head of every federal department or agency is an officer of the United States. Those acting under him are themselves officers or they are employees. Officers or employees, they are within the statute; they are acting under an officer of the United States. All federal employees fall within the class described. Inclusiveness to this degree was the intention of the revisers when the Judicial Code was changed in 1948. The “Reviser’s note” declared sweepingly: “The revised subsection (a)(1) is extended to apply to all officers and employees of the United States or any agency thereof.” 28 U.S.C. Ann. § 1442, “Historical and Revision Note.”

The extent of the change in 1948 rendered superfluous parts of earlier law that…

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: 1 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? 2 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…