United States District Court, D. Minnesota
Christa J. Groshek, Esq. and Groshek Law, counsel for
Brendan D. Cummins, Esq., Laura I. Bernstein, Esq. and
Cummins & Cummins, LLP, counsel for defendant.
S. Doty, Judge
matter is before the court upon the motion to dismiss by
defendant Andrew Abram and the motion to remand by plaintiff
Steven Kelley. Based on a review of the file, record, and
proceedings herein, and for the following reasons, the court
grants the motion to remand and denies the motion to dismiss
case arises out of Kelley's claim that Abram, his
co-worker at the United States Postal Service, has repeatedly
harassed him - physically and verbally - at their
workplace. Beginning in December 2014, Kelley
reported several instances of alleged harassment to post
office management. According to Kelley, management moved him
to a different floor and told Abram to stay away from him. On
September 29, 2016, Kelley filed an incident report alleging
continued verbal harassment by Abram. The next day, before
management could respond to the report, Kelley filed a
petition for a harassment restraining order in Hennepin
County District Court. ECF No. 1, Ex. A. Later that day, the
court granted the petition ex parte, prohibiting Abram from
being within three blocks of Kelley's home and within
twenty feet of his job site. Id. Ex. B, at 2. The
restraining order, which is in effect until September 30,
2018, expressly states that Abram can request that the order
be modified or vacated within forty-five days. Id.
Rather than do so, Abram removed the case to this court under
the federal officer removal statute, 28 U.S.C. §
1442(a). Kelley now moves to remand and Abram moves to
28 U.S.C. § 1442(a), federal employees have a limited
right to remove state legal proceedings to federal court. The
statute specifically authorizes the removal of any civil or
criminal case against “any officer (or any person
acting under that officer) of the United States or of any
agency thereof, sued ... for any act under color of such
office.” Id. It is “designed to avert
various forms of state court prejudice against federal
officers ... carry[ing] out federal law.” Jacks v.
Meridian Res. Co., LLC, 701 F.3d 1224, 1231 (8th Cir.
2012). T h e r e i s n o dispute that Abram is a federal
officer under the meaning of the statute. “To qualify
for removal, however, [he] must also raise a ‘colorable
federal defense arising out of [his] duty to enforce federal
law.'” Minnesota v. Weber, 589 F.Supp.2d
1170, 1173 (D. Minn. 2008) (quoting Mesa v.
California, 489 U.S. 121, 133, 139 (1989)). In other
words, there must be a causal nexus between the challenged
conduct and the defendant's official authority.
“[I]t is not enough for a federal employee to simply
allege that at the time of the incident he was ‘on duty
and acting in the course and scope of his federal
employment.'” Id. (quoting Mesa,
489 U.S. 121, 123 (1989)). Yet, that is exactly what Abram
argues that he acted under “color of [his]
office” at all relevant times simply because the
alleged harassment occurred at the post office. He points to
several cases from outside this district, and none issued by
the Eighth Circuit, in support of his position. The court has
reviewed the cases and finds them to be unpersuasive, and
distinguishable in any event. Most of the cases involve
alleged harassment by an employee's supervisor. See,
e.g., Hendy v. Bello, 555 F. App'x 225, 226
(4th Cir. 2014); Haynie v. Bredenkamp, No. 16-773,
2016 WL 3653957, at *1-2 (E.D. Mo. July 8, 2016); Cubb v.
Belton, No. 15-676, 2015 WL 4079077, at *4 (E.D. Mo.
July 6, 2015); City of Las Cruces v. Baldonado, 652
F.Supp. 138, 139 (D.N.M. 1986); Bagwell v. Brannum,
533 F.Supp. 362, 363 (D. Ga. 1982). In such circumstances,
the statute may properly apply because the supervisory
relationship implicates managerial authority and disciplinary
action directly related to federal employment. Here, however,
the parties are co-equal employees engaged in a personal
dispute unrelated to their work, save its location. The court
does not read § 1442(a) so broadly as to permit removal
in such circumstances.
similar reasons, Abram also fails to raise a colorable
federal defense. “[R]emoval under § 1442(a)(1) ...
was meant to ensure a federal forum in any case where a
federal official is entitled to raise a defense arising out
of his official duties.” Arizona v. Manypenny,
451 U.S. 232, 242 (1981). As discussed, Abram's alleged
misconduct was unrelated to his official duties. As a result,
remand is warranted.
based on the above, IT IS HEREBY ORDERED that 1. The motion
to remand [ECF No. 12] is granted; 2. The motion to dismiss
[ECF No. 6] is denied as moot; and 3. The case is remanded to
Hennepin County District Court.
JUDGMENT BE ...