The Color of Office Strikes Back
Eventually I Will Find A Different Topic To Write About
Hello Friends. We now have Donald Trump’s memorandum in opposition to the motion for remand and we are continuing our series on Federal Officer Removal.
As discussed previously, I think Donald Trump’s biggest obstacle to removal is demonstrating that his conduct arises from his duties as an officer of the United States. This will be the focus of this short post, but I will briefly go over the other arguments as well.
Trump leads his memorandum disputing the argument that the President is not an officer under the United States. Trump’s memorandum (accurately) provides that this argument is cribbed from Josh Blackman and Professor Seth Barrett Tillman
The next section addresses the color of office argument which we will come back to in a second. Trump then argues that he has established a plausible federal defense through both preemption and Neagle immunity (which the memorandum identifies as Supremacy Clause immunity).1 The section on Neagle immunity doesn’t identify an analogous case to the facts at issue, but argues that he meets the elements of Neagle immunity as articulated by the Second Circuit2 and that such determinations are “necessarily factbound determinations that cannot possibly be disproven at this stage by DANY on the basis of the record as it exists.” The final section addresses the protective jurisdictional argument and blusters that this case so obviously qualifies for federal officer removal so the court doesn’t need to reach the issue:
With that out of the way, let’s circle back to the color of office section. The argument focuses on a 2011 amendment to 28 U.S.C. § 1442. The 2011 amendment added the bolded words to the statute:
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.
Citing to the legislative history, Trump argues that the purpose of the amendment was to “broaden the universe of acts that enable Federal officers to remove to Federal court.” As a result, all of New York’s case citations prior to 2011 should be disregarded.
I think this section of the brief is argued as well as it can be. The real shortcoming is not one that Trump’s attorneys can fix — there do not appear to be any post-2011 cases that are remotely analogous to Trump’s arguments. I’m not going to pretend that I have read all 724 cases which cite to 28 U.S.C. § 1442 after November 9, 2011 and which quote the “or relating to” language, but I couldn’t find anything helpful to Trump. The through-line I see on the post-2011 cases is that federal contractors who put asbestos in things a long time ago qualify for removal, (see e.g. Moore v. Elec. Boat Corp., 25 F.4th 30 (1st Cir. 2022)), that nursing homes that killed people during the COVID-19 pandemic do not (see e.g. Saldana v. Glenhaven Healthcare LLC, 27 F.4th 679 (9th Cir. 2022)), and that oil companies being sued about climate change do not (see e.g. Minnesota by Ellison v. Am. Petroleum Inst., 63 F.4th 703, 708 (8th Cir. 2023)).
If I were New York, I would argue that the “or relating to” language should be interpreted to expand the scope of federal officer removal in regard to non-government actors as opposed to expanding the scope of what constitutes an act under color of office by a federal officer.
Overall, I think Trump’s response was quite good for what the attorneys had to work with.3 The problem is that the case law just isn’t on their side in regard to the color of office prong.
I think this categorization is weird because preemption is a Supremacy Clause defense too.
(1) the federal agent was performing an act which he was authorized to do by the law of the United States and (2) in performing that authorized act, the federal agent did no more than what was necessary and proper for him to do.” Whitehead v. Senkowski, 943 F.2d 230, 234 (2d Cir. 1991).
There is far too much bluster, but that is a common flaw in briefing.