Kelley v. Abram
ORDER denying as moot 6 Motion to Dismiss; granting 12 Motion to Remand to State Court. (Written Opinion) Signed by Senior Judge David S. Doty on 2/13/2017. (DLO)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 16-3830(DSD/KMM)
Christa J. Groshek, Esq. and Groshek Law, 530 North 3rd Street,
Suite 310, Minneapolis, MN 55401, counsel for plaintiff.
Brendan D. Cummins, Esq., Laura I. Bernstein, Esq. and Cummins
& Cummins,LLP, 920 Second Avenue South, Suite 1245,
Minneapolis, MN 55402, counsel for defendant.
This matter is before the court upon the motion to dismiss by
defendant Andrew Abram and the motion to remand by plaintiff Steven
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 as moot.
This case arises out of Kelley’s claim that Abram, his coworker at the United States Postal Service, has repeatedly harassed
him - physically and verbally - at their workplace.1
Kelley and Abram are both mail processing clerks. Abram
Aff. ¶¶ 2-3. Abram also handles grievances as an elected member of
the Minneapolis Area Local of the American Postal Workers Union.
Id. ¶ 3. Neither party asserts that Abram handled any grievance
filed by Kelley or that Abram’s union position is relevant to the
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.
day, before management could respond to the report, Kelley filed a
petition for a harassment restraining order in Hennepin County
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
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.
Rather than do so, Abram removed the case to this court under the
federal officer removal statute, 28 U.S.C. § 1442(a).
moves to remand and Abram moves to dismiss.
Under 28 U.S.C. § 1442(a), federal employees have a limited
right to remove state legal proceedings to federal court.
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.”
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).
dispute that Abram is a federal officer under the meaning of the
“To qualify for removal, however, [he] must also raise a
‘colorable federal defense arising out of [his] duty to enforce
Minnesota v. Weber, 589 F. Supp. 2d 1170, 1173 (D.
Minn. 2008) (quoting Mesa v. California, 489 U.S. 121, 133, 139
In other words, there must be a causal nexus between the
challenged conduct and the defendant’s official authority.
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.’”
121, 123 (1989)).
Id. (quoting Mesa, 489 U.S.
Yet, that is exactly what Abram does here.
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
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.
In such circumstances, the statute may properly apply
authority and disciplinary action directly related to federal
Here, however, the parties are co-equal employees
engaged in a personal dispute unrelated to their work, save its
The court does not read § 1442(a) so broadly as to
permit removal in such circumstances.
For similar reasons, Abram also fails to raise a colorable
“[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).
Abram’s alleged misconduct was unrelated to his official duties.
As a result, remand is warranted.
Accordingly, based on the above, IT IS HEREBY ORDERED that
The motion to remand [ECF No. 12] is granted;
The motion to dismiss [ECF No. 6] is denied as moot; and
The case is remanded to Hennepin County District Court.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: February 13, 2017
s/David S. Doty
David S. Doty, Judge
United States District Court
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