Warren Havens v. Arnold Leong, et al.
DueProcess Securities JusticiabilityDoctri
Can a District Court remand a State Court action timely removed under 28 U.S. Code § 1442 without allowing the removing party rights to defend the removal
QUESTIONS PRESENTED A defendant sued in a State Court can timely remove the action to the local federal District Court where the party alleges federal question jurisdiction. Such removals are essential to operation of federal law supremacy under Article VI of the Constitution. One ground for removal is 28 U.S. Code §1442(a), that the defendant is a federal officer, or acting under that officer, or a holder of property derived from such officer. Under § 1447 (d) a remand of a §1442(a) removal "shall be reviewable by appeal or otherwise" where all grounds for removal will be reviewed (BP P.L.C. v. ... Baltimore, 141 S. Ct. 1532, 1537-38 (2021). The State Court defendants here include: (i) an individual (this petitioner), (ii) for-profit legal entities, (iii) a nonprofit entity granted by tax exemption by the I.R.S. under 26 U.S.C. 501(c)(3) providing charitable benefits Congress intended, and (iv) FCC licenses for maritime communications on ships. The questions are: 1. Can a District Court remand a State Court action timely removed under 28 U.S. Code § 1442 without allowing, after the notice of removal was challenged by a motion to remand, the removing party rights to defend the removal with facts and law not in the notice under principles in BP P.L.C. v. ... Baltimore, 141 8. Ct. 1532, 1537-38 (2021) on § 1442(a) removal, and Dart Cherokee. v. Owens, 574 U.S. 81, 89 (2014) and Arias v. Residence Inn... 936 F.3d 920 (9th Cir. 2019) that allow such a defense? : 2. Are the Courts of Appeal obligated to allow a timely appeal of District Court remands of removals under 28 U.S. Code § 1442 where the appellant . is permitted to brief the appeal or can the Court of Appeal summarily affirm the remand by sua sponte review of the District Court record, not stating facts found in support -where the record shows the District Court barred rights under Dart and Arias (above)? 3. This court in Grable & Sons... v. Darue..., 545 U.S. 308 (2005): "Held: The ; national interest in providing a federal forum for federal tax litigation is sufficiently substantial to support the exercise of federal-question jurisdiction over the disputed issue on removal. Pp. 312-320.” ii Can a State Court action be timely removed to federal District Court where the plaintiff's claims on their face, and as carried out, reject the federal tax laws that govern a defendant nonprofit corporation to which the IRS granted tax-exemption under 26 U.S. Code § 501(c)(8) and rights to provide tax deductions to donors, under 28 USC §1442(a)(1) as "(a) A civil action... commenced in a State court... against or directed to... (1) The United States or any agency thereof or any officer (or any person acting under that officer)... 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 collection of the revenue." ? 4. Under Article III of the Constitution, 28 USC § 1333 states that "The district courts shall have original jurisdiction, exclusive of the courts of the States, of... Any civil case of admiralty or maritime jurisdiction." Does § 1333 encompass, for timely removal purposes, FCC licenses under plaintiff claims in a State Court action specifically established by the FCC to provide radio communications from and to ships along the US coastlines and inland navigable waterways, with physical radio stations (transceivers, antennas, power systems, data loggers, etc.) on the ships and . on land along the waterways? Reasonably included under question 1, 3 and 4 above is the breadth and meaning of removal under § 1442 (a) which provides (underlining added): "A civil action ... commenced in a State court and that is against or directed to . (1) any officer (or any person acting under that officer) of the United States or of any agency thereof... for_or relating to any act under color of such office..." (2) A property holder whose title is derived from any s