The opinion of the court was delivered by: Robert W. Gettleman, United States District Judge
MEMORANDUM OPINION AND ORDER
On, November 29, 2001, plaintiffs Elizabeth Sheda, Marie Olson, St.
Odilo Church, Tabor Hills Health Care Facilities, Inc. f/k/a Bohemian
Home for the Aged, and The Congregation of Mariannhill Missionaries filed
their petition in the Probate Division of the Circuit Court of Cook
County to contest the validity of an amendment to the Caroline Novak
Declaration of Trust. The Petition lists defendants Fifth Third Bank, as
Independent Executor of the Estate and Successor Trustee of the Carline
Novak Declaration of Trust, and the United States Department of the
Treasury, Bureau of the Public
Debt (the "Bureau"), as Trust
Beneficiary. The petition alleges that the Trust's purported 1995
amendment, which eliminated all of the previous beneficiaries of the
Trust and left the Trust's entire balance to the Bureau, is void because
Caroline Novak lacked the mental capacity make or execute the amendment.
On December, 17, 2001, the Bureau removed the matter to this court
pursuant to 28 U.S.C. § 1442 (a)(1). Plaintiffs now seek to remand.
For the reasons set forth below, plaintiffs' motion is granted.
Plaintiffs offer two arguments to support their motion to remand.
First, plaintiffs argue this court has no jurisdiction because the
instant case falls within the probate exception to federal court
jurisdiction. Second, plaintiffs argue that § 1442(a)(1) does not
apply to the action brought in the instant case. Because the court agrees
that the removal pursuant to § 1442(a)(1) was improper, plaintiffs'
alternative argument will not be discussed.
28 U.S.C. § 1442 (a)(1) provides:
(a) A civil action or criminal prosecution commenced
in a State court against 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, sued in an
official or individual capacity for 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 criminal or the
collection of the revenue.
It is well established that the primary purpose of § 1442(a) is to
"permit the removal of cases where federal officers are threatened with
personal civil liability or criminal liability because of actions taken in
pursuance of their federal duties." Fountain Park Co-op., Inc., v. Bank of
Am. Nat'l Trust & Savings Ass'n, 289 F. Supp. 150, 154 (D.C.Calif.
1968). See also Wiilingham v. Morgan, 89 S.Ct. 1813, 1816 (1969)(stating
the primary reason for the statute was to provide a federal forum in
which federal officers could raise their defenses that arise out of their
duty to enforce federal law); State of New Jersey v. Moriarity,
268 F. Supp. 546, 555 (D.N.J. 1967)(noting that removal was initially
restricted to cases in which the federal officer's defense was that no
civil or criminal liability could be attached to his action because he
was simply performing his federal duties). In other words, Congress
thought it best to protect federal supremacy by providing a federal forum
for federal officers or agencies who or which were sued in state court
for actions arising from their federal responsibilities. Fountain Park
Cooperative, Inc., 289 F. Supp. at 154.
Although 1442(a)(1) has been expanded to enlarge the class of federal
defendants who are entitled to remove,*fn1 the types of actions that are
removable under 1442(a)(1) have conformed to the primary purpose of the
statute and, by the express language of the statute, remained restricted
to instances in which the defendant is, 1) sued "for any act under color
of such office", or 2) sued "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 revenues." 28 U.S.C. § 1442(a)(1)
(2001). Thus, contrary to the Bureau's assertion, removal under §
1442(a)(1) is not absolute. See,
e.g., Ford Motor Co. v. Automobile
Ins. Co., 13 F.2d 415, 417 (E.D.Mich. 1926)(reciting "the mere fact that
defendant in a suit is an officer of a federal court does not make such
suit removable."); Crivello v. Bd. of Adjustment of Borough of
Middlesex, 183 F. Supp. 826, 827 (D.N.J. 1960)(stating "[t]he nature of
the proceeding is necessarily determinative of its removability.");
Moriarity, 268 F. Supp. at 556 ("a suit is not automatically removable,
without regard to the nature of the relief sought, merely because . . .
property in which the Federal officer or agency has an interest may be
"Removal is a purely statutory right that limits the state's judicial
powers; as such, its requirements must be strictly construed." Keys By
Washington v. Konrath, 1994 WL 75037 at *1 (N.D.Ill. 1994). The party
asserting removal bears the burden of establishing that all of the
requirements have been met. Id. Moreover, the Supreme Court has held that
"federal officer removal must be predicated on the allegation of a
colorable federal defense." Mesa v. Calfornia, 489 U.S. 121, 129 (1989).
See also Venezia v. Robinson, 16 F.3d 209, 211 (7th Cir. 1994)("Section
1442(a)(1) does not permit removal on the federal party's say-so; there
must be a bona fide federal defense to the claim based on state law.")
The Bureau's bare assertion that removal is proper under §
1442(a)(1) is insufficient to meet its burden. Plaintiffs brought this action
to contest the validity of a will and joined the Bureau only because it
is listed as a trust beneficiary. As a beneficiary, the Bureau must be
named pursuant to the Illinois Probate Act as a defendant. There is no
allegation of any wrongdoing on the part of the Bureau, and no claim or
defense arises from the Bureau's performance of its federal
responsibilities. Therefore, this action cannot be classified as an
action "for any act under color of such office." Moreover, the Bureau has
not attempted to assert any "colorable defense" as required in Mesa. As a
result, the case must be remanded.
Accordingly, plaintiffs' motion to remand the instant case to the
Probate Division of the Circuit ...