Summary: Plaintiff commenced an action in state court against the respondents, requesting a disorderly conduct restraining order against the named individual respondents. The government, on behalf of the United States Postal Service and the respondents, removed the case to this court, alleging the action is against the USPS because all the parties to the action are employees of the USPS and the acts or omissions the respondents are charged with occurred during the course of such employment. The respondents further assert that the relief requested by the petitioners necessarily effects the operations of the USPS. Petitioners moved for an order remanding the action to state court. The court recommended a denial of petitioners' motion, finding the action is an employment matter, that all persons involved are employees of the federal government, and but for the employment relationship, none of the alleged "acts of harassment" would have occurred.

Case Name: Devitt, et al. v Pollach, et al.
Case Number: A3-00-117
Docket Number: 29
Date Filed: 12/4/00
Nature of Suit: 442

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHEASTERN DIVISION

REPORT AND RECOMMENDATION

Before the court is petitioners' Motion to Remand (Doc. # 5) and the respondents' objection thereto (Doc. #26). This action was commenced by the service of a Petition for Disorderly Conduct Restraining Order against the individual respondents on July 26, 2000. The United States was never formally served with the pleadings but removed the case to this court on behalf of the United States Postal Service and the respondents. The Notice of Removal states that the individual defendants are named in a civil action pending in state court, that the individuals named are all employees of the United States Postal Service (USPS), "and the acts or omissions with which they are charged all occurred while they were working at the Prairiewood Station. . ." The Notice of Removal further states that the petitioners, as employees of the USPS, "are all covered by collective bargaining agreements," that "most of the claims made in the petition fall within the jurisdiction of these collective bargaining agreements,. . ." and that there are other provisions of federal law which control the relationship between the parties. Finally, the Notice of Removal suggests that the relief requested by the petitioners necessarily impacts the USPS, which has not been made a party and over which the state court has no jurisdiction. Based on the foregoing, this action was removed to this court from Cass County District Court on or about August 23, 2000. On August 25, 2000 petitioners filed the pending Motion to Remand, asserting that the respondents were not "acting 'under color' of their office, under color of law or in their official capacities as federal employees" and "thus they do not fall within the ambit of Title 28 United States Code Section 1442 (a)(1)." Petitioners further assert that the government has misconstrued the petition for relief in the state court because "no remedy is sought against [the Postmaster General of the United States]," "the respondents were not working within the 'scope of employment' by committing alleged acts of disorderly conduct," and "the respondents have asserted no colorable claim of a defense based on their federal offices." In other words, petitioners assert they are entitled to use a "state anti-harassment statute to redress a grievance."

The government, acting on behalf of the United States Postal Service and the individual respondents, opposes the motion to remand. For the most part the government reiterated its positions outlined in the Notice of Removal, including that there are administrative procedures available to redress the wrongs asserted which have not been exhausted by the petitioners, that the service of the subpoena on a federal official is in itself justification for the removal, see Brown & Williamson v. Williams, 62 F.3d 408, 413-14 (D.C. Cir. 1995), the relief requested necessarily impacts the operations of the postal office, and respondents do have a colorable federal defense to the allegations in the petition, see Jefferson County, Alabama v. Acker, 527 U.S. 423, 430-32 (1999); Brown v. General Servs. Admin., 425 U.S. 820, 835 (1976). Additionally, in further support of their position that there is an inseparable nexus between the employment relationship and the conduct about which petitioners complain, the government highlights the incongruity of the petitioners' position that they "were driven to sue a state court remedy because of the failure of postal management to address the abuses by the respondents of the Postal Service's Zero Tolerance Policy for harassment, name calling, hostility and similar intentional disorderly conduct," yet they maintain that there is no relationship between the misconduct and the employment.

This court agrees with the government that this action belongs in federal court. It is plainly and simply an employment action and the petitioners and respondents are all employees of the federal government. But for the employment relationship, the alleged actions of wrongdoing on the part of the respondents would not have occurred. Accordingly, IT IS RECOMMENDED that petitioners' Motion to Remand (Doc. #5) be DENIED. Respondents are directed to respond to the petition within 10 days from the date of the district court's order, assuming adoption of this recommendation.

Pursuant to Local Rule 72.1(E)(4), any party may object to this recommendation within ten (10) days after being served with a copy thereof.

Dated this ____ day of November, 2000.

Karen K. Klein
United States Magistrate Judge