Brown, Marvelle v. Schwab, Marilyn

Filing 8

ORDER that defendant is to file a supplement brief explaining how this case falls within 28 U.S.C. § 1442(a)(1) on or before September 14, 2102. Signed by District Judge William M. Conley on 9/7/2012. (elc),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

MARVELLE BROWN,

OPINION AND ORDER
Plaintiff,
12-cv-571-wmc

v.
MARILYN SCHWAB,
Defendant.

The court is in receipt of defendant Marilyn Schwab’s brief in response to an order
requiring the defendant to describe the factual basis for removal in detail and provide
supporting legal argument.

(Dkt. #7.)

Defendant contends that removal is proper

under 28 U.S.C. § 1442(a)(1), because she is an officer of the United States as the
“Administrative Officer for the NCCPAC which is part of the VA.” (Def.’s Br. (dkt. #7)
3.) Defendant fails to cite any support for her reading of “officer” to include someone
holding her position or one similar to it.
More importantly, courts construing this removal provision, including the United
States Supreme Court, have limited its application to instances where the federal official
defendant raises a colorable federal defense, for example immunity predicated on federal
law. See, e.g., Mesa v. California, 489 U.S. 121, 133-37 (1989) (explaining the history of §
1442(a)(1) as an exception to the “well-pleaded complaint” rule and reiterating its
longstanding holding that “the federal officer removal statute [] require[s] the averment of
a federal defense”). As far as this court can discern, defendant claims no such defense.
The court will allow defendant one more chance to explain how this case falls

1

within the contours of 28 U.S.C. § 1442(a)(1). Failure to do so will result in remand of
this matter to state court.

ORDER
IT IS ORDERED that defendant must file a supplemental brief on or before
September 14, 2012.
Entered this 7th day of September, 2012.
BY THE COURT:
/s/
________________________________________
WILLIAM M. CONLEY
District Judge

2