Shiraishi v. Kubo et al

Filing 28

ORDER: (1) DENYING PLAINTIFF'S OBJECTIONS TO THE FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF'S MOTION FOR REMAND AND (2) ADOPTING THE MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION 17 . Signed by JUDGE DAVID ALAN EZRA on 6/23/2011. (afc)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications will be served by first class mail on June 23, 2011.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

THOM SHIRAISHI,

)
)
Plaintiff,
)
vs.
)
)
EDWARD H. KUBO, JR., HARRY )
YEE, EDRIC M. CHING,
)
)
Defendants.
)
_____________________________ )

CV. NO. 11-00225 DAE-BMK

ORDER: (1) DENYING PLAINTIFF’S OBJECTIONS TO THE FINDINGS AND
RECOMMENDATION TO DENY PLAINTIFF’S MOTION FOR REMAND
AND (2) ADOPTING THE MAGISTRATE JUDGE’S FINDINGS AND
RECOMMENDATION
Pursuant to Local Rule 7.2(d), the Court finds this matter suitable for
disposition without a hearing. After reviewing the motions and the supporting and
opposing memoranda, the Court: (1) DENIES Plaintiff’s Objections to the
Findings and Recommendation to Deny Plaintiff’s Motion for Remand (Doc. # 21)
and (2) ADOPTS the Magistrate Judge’s Findings and Recommendation (Doc.
# 17).
BACKGROUND
Plaintiff Tom Shiraishi (“Plaintiff”) initially filed this action against
the Defendants in the Circuit Court of the First Circuit, State of Hawaii, on March

22, 2011. (“F&R,” Doc. # 17, at 2.) Plaintiff’s Complaint alleges “violations of
federal regulations, contract rights, Amendments of the Constitution, a citizens
Civil Rights in an obstruction of justice and the due administration of law” and
seeks damages. (“Compl.,” Doc. # 1-2, ¶¶ 4–5, 33–34.) Plaintiff’s claims stem
from the alleged filing of a civil foreclosure action by the United States Attorney’s
Office on November 16, 2004, and the United States Attorney’s Office’s filing of a
motion for relief of bankruptcy stay to permit the foreclosure sale to go forward.
(Id. ¶¶ 18, 25.) According to Plaintiff, this misconduct was alleged to have
occurred pending an appeal. (Id. ¶ 33(4).) The Complaint makes clear that
Plaintiff’s claims stem exclusively from acts undertaken by Defendants in
connection with civil litigation in their official capacities as Department of Justice
attorneys. (See, e.g., Compl. ¶¶ 8, 18, 26, 33(4), 34.)
On April 7, 2011, Defendants removed the state court action to federal
court pursuant to 28 U.S.C. § 1442. (Doc. # 1.) On April 14, 2011, Plaintiff filed
a Motion for Remand which was referred to United States Magistrate Judge
Richard L. Puglisi. (Doc. # 11.) On May 19, 2011, Judge Puglisi issued his
Findings and Recommendation to Deny Plaintiff’s Motion for Remand. (Doc.
# 17.) On May 25, 2011, Plaintiff filed the instant Objections to

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the Findings and Recommendation. (“Objections,” Doc. # 21.) On June 8, 2011,
the Defendants filed their Response to the Objections. (“Resp.,” Doc. # 25.)
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1)(A), a district judge may designate a
magistrate judge to hear and decide a pretrial matter pending before the court. The
decision of the magistrate judge on non-dispositive matters is final. Bhan v. NME
Hosp., Inc., 929 F.2d 1404, 1414 (9th Cir. 1991). However, a district judge may
reconsider a magistrate’s order on these non-dispositive pretrial matters and set
aside that order, or any portion thereof, if it is “clearly erroneous or contrary to
law.” Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A); LR 74.1; see Rivera v.
NIBCO, Inc., 364 F.3d 1057, 1063 (9th Cir. 2004); see also Osband v. Woodford,
290 F.3d 1036, 1041 (9th Cir. 2002).
The threshold of the “clearly erroneous” test is high. See Boskoff v.
Yano, 217 F. Supp. 2d 1077, 1084 (D. Haw. 2001). The magistrate judge’s factual
findings must be accepted unless the court is “left with the definite and firm
conviction that a mistake has been committed.” United States v. Silverman, 861
F.2d 571, 576–66 (9th Cir. 1988). “The reviewing court may not simply substitute
its judgment for that of the deciding court.” Grimes v. City & Cnty. of S.F., 951
F.2d 236, 241 (9th Cir. 1991).
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“A decision is ‘contrary to law’ if it applies an incorrect legal standard
or fails to consider an element of the applicable standard.” Na Pali Haweo Cmty.
Ass’n v. Grande, 252 F.R.D. 672, 674 (D. Haw. 2008); see Hunt v. Nat’l
Broadcasting Co., 872 F.2d 289, 292 (9th Cir. 1989) (noting that such failures
constitute abuse of discretion).
DISCUSSION
The Federal Officer Removal Statute provides:
(a) A civil action or criminal prosecution commenced in a State
court against any of the following may be removed by the 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 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 criminals or the collection of revenue.
28 U.S.C. § 1442(a)(1). The purpose behind this statute “is to protect the Federal
Government form the interference with its operations that would ensue were a state
able, for example, to arrest and bring to trial in a State court for an alleged offense
against the law of the State, officers and agents of the Federal government
acting . . . within the scope of their authority.” Watson v. Phillip Morris Cos., 551
U.S. 142, 147 (2007) (citing Willingham v. Morgan, 395 U.S. 402, 406 (1969))
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(quotations and modifications omitted). The United States Supreme Court “has
held that the right of removal is absolute for conduct performed under color of
federal office, and has insisted that the policy favoring removal ‘should not be
frustrated by a narrow, grudging interpretation of § 1442(a)(1).’” Arizona v.
Manypenny, 451 U.S. 232, 242 (1981) (quoting Willingham, 395 U.S. at 407); see
also Durham v. Locheed Martin Corp., 445 F.3d 1247, 1252–53 (9th Cir. 2006)
(same).
A party seeking removal per § 1442(a) must demonstrate: “(a) it is a
‘person’ within the meaning of the statute; (b) there is a causal nexus between its
actions, taken pursuant to a federal officer's directions, and plaintiff's claims; and
(c) it can assert a ‘colorable federal defense.’” Durham, 445 F.3d at 1251 (citing
Jefferson County v. Acker, 527 U.S. 423, 431 (1999)).
Judge Puglisi concluded this three-prong test was satisfied, finding
first that “as Plaintiff alleges, Defendants were at all times relevant to this action
federal officers employed by the United States Department of Justice.” (F&R at 4
(citing Compl. ¶ 3).) Second, Judge Puglisi found that “the current United States
Attorney for the District of Hawaii has certified that the Defendants were acting
within the course and scope of their respective official duties in connection with
their actions relating to Plaintiff, the subject foreclosure action, and the related
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bankruptcy proceedings.” (Id.) Finally, Judge Puglisi found that “Defendants, in
their opposition to Plaintiffs Motion for Remand, contend that they will assert a
number of colorable federal defenses including but not limited to, res judicata or
collateral estopppel, statute of limitations, sovereign immunity, and absolute and
qualified immunity.” (Id. at 5.) Judge Puglisi therefore concluded that Defendants
satisfied all requirements for removal under Section 1442(a)(1) and recommended
that Plaintiff’s Motion for Remand be denied. (Id.)
It is not entirely clear to the Court what, specifically, Plaintiff here
challenges with respect to Judge Puglisi’s decision. The majority of Plaintiff’s
Objections can only be characterized as ad hominem attacks on Judge Puglisi.1
(Objections at 4–8, 10.) As best this Court can discern, the actual objections
Plaintiff raises with respect to Judge Puglisi’s decision include only the following:
•

Defendants did not act within the course and scope of their
respective duties when the underlying conduct took place. (Id.
at 8.)

•

Defendants have not raised colorable defenses. (Id. at 10.)

1

Indeed, Plaintiff appears to suggest that Judge Puglisi has somehow
engaged in criminal or negligent conduct. (Objections at 5.)
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Therefore, according to Plaintiff, this Court lacks jurisdiction to hear the case. (Id.
at 1–3.) The Court disagrees.
With respect to the first point, Plaintiff cites no case law and makes
only the conclusory argument that Defendants were not acting within the scope of
their official duties because they pursued the complained of foreclosure while
appeals were allegedly pending. (Id. at 8.) The Supreme Court has concluded that
this sort of argument is insufficient to defeat removal:
[W]e think it was sufficient for petitioners to have shown that their
relationship to respondent derived solely from their official duties.
Past cases have interpreted the ‘color of office’ test to require a
showing of a ‘causal connection’ between the charged conduct and
asserted official authority. . . . It is enough that (petitioners’) acts or
(their) presence at the place in performance of (their) official duty
constitute the basis, though mistaken or false, of the state prosecution.
In this case, once petitioners had shown that their only contact with
respondent occurred . . . while they were performing their duties, we
believe that they had demonstrated the required ‘causal connection.’
The connection consists, simply enough, of the undisputed fact that
petitioners were on duty, at their place of federal employment, at all
the relevant times. If the question raised is whether they were
engaged in some kind of ‘frolic of their own’ in relation to
respondent, then they should have the opportunity to present their
version of the facts to a federal, not a state, court. This is exactly what
the removal statute was designed to accomplish.
Willingham, 395 U.S. at 409 (citations and quotations omitted) (emphasis added).
Here, not only have Defendants submitted a certification of the current United
States Attorney stating that Defendants were acting within the course and scope of
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their official duties, (see Doc. # 1-1 ¶ 3,) but in the Complaint Plaintiff makes clear
that the conduct was undertaken in their official capacities as Department of Justice
attorneys. (Compl. ¶¶ 6, 8, 14, 18, 25, 26.) Because Defendants “were on duty, at
their place of federal employment, at all relevant times,” Defendants are entitled to
present their version of the facts to this Court. Willingham, 395 U.S. at 409.
Judge Puglisi correctly concluded that this prong of the test was satisfied. (F&R at
4.)
Plaintiff’s remaining contention, that Defendants have not raised
colorable defenses, is also without merit. On this point, Plaintiff asserts:
Finally Judge Puglisi to support his Findings and
Recommendations provides the Defendants will assert a number of
colorable federal defenses including, but not limited to res judicata, or
collateral estoppel, statute of limitations, sovereign immunity and
absolute and qualified immunity.
Judge Puglisi apparently did not review Plaintiff’s Complaint
that had addressed res judicata, collateral estoppel and the statute of
limitations that lacks any standing, and the judicial conduct
organizations and the courts have already ruled the Defendants waived
their sovereignty [sic], absolute and qualified immunity when they
committed their criminal felonies.
(Objections at 10.) Whether Plaintiff addressed these defenses in his Complaint
has no bearing on whether Defendants have raised colorable defenses.2 Instead, a

2

Indeed, it is not the Plaintiff’s role to determine whether a defense has
merit or is colorable.
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colorable defense is merely a plausible defense, and a court need not determine at
the removal stage if that defense will succeed at trial. See Kircher v. Putnam
Funds Trust, 547 U.S. 633, 644 n.12 (2006) (“An officer’s federal defense need
only be colorable to assure the federal court that it has jurisdiction to adjudicate the
case.”). Here Judge Puglisi properly identified the appropriate standard and
reasonably applied it to the facts before him. He did not err legally, nor has
Plaintiff pointed the Court to any fact or circumstances which suggests he erred
factually. Plaintiff has therefore failed to carry his heavy burden in seeking
reconsideration of Judge Puglisi’s decision.3
3

Plaintiff also argues that his Tucker Act claim precludes Defendants from
removing the case to federal court. (Objections at 3.) The Court disagrees. First
the Court is not convinced that Plaintiff has anywhere alleged a claim that is, in
substance, a Tucker Act claim. Along this vein, Defendants here submit that the
Complaint fails to state a valid Tucker Act cause of action. The Supreme Court
has made clear that the federal removal statute is “broad enough to cover all cases
where federal officers can raise a colorable defense arising out of their duty to
enforce federal law.” Willingham, 394 U.S. at 106–07. Failing to state a claim for
relief is plainly a colorable defense and Plaintiff’s claim therefore falls directly into
the ambit of the removal statute. Moreover, allowing Plaintiff to use his one
Tucker Act claim as a basis for remanding his entire case to state court is simply
illogical and frustrates the purpose both of the Federal Officer Removal Statute as
well as the Tucker Act itself, whose primary purpose is to ensure large claims
against the United States are heard in the Court of Federal Claims rather than
district courts. See McGuire v. United States, 550 F.3d 903, 911 (9th Cir. 2008)
(“The legislative intent [behind the Tucker Act] in granting concurrent district
court jurisdiction over claims of less than $10,000 was to relieve small claimants of
the expense of traveling to Washington, D.C., to litigate before the Court of
Federal Claims, while large claims remained centralized at the seat of the
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CONCLUSION
For these reasons the Court: (1) DENIES Plaintiff’s Objections to the
Findings and Recommendation to Deny Plaintiff’s Motion for Remand (Doc.
# 21.) and (2) ADOPTS the Magistrate Judge’s Findings and Recommendation
(Doc. # 17.).

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 23, 2011.

_____________________________
David Alan Ezra
United States District Judge

Shiraishi v. Kubo, et al., CV 11-00225 DAE-BMK; ORDER: (1) DENYING
PLAINTIFF’S OBJECTIONS TO THE FINDINGS AND RECOMMENDATION
TO DENY PLAINTIFF’S MOTION FOR REMAND AND (2) ADOPTING THE
MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION

government so that department heads would be better able to protect the
government's interests.”). This rational applies a fortiori with respect to large
Tucker Act claims brought in state court. Plaintiff’s argument is therefore more
properly addressed in a Motion to Transfer to the Court of Claims rather than a
Motion for Remand to state court.
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