| JEFFERSON COUNTY V. ACKER (98-10) 527 U.S. 423 (1999)
137 F.3d 1314, reversed and remanded. | |||
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| Syllabus | Opinion [ Ginsburg ] | Other [ Opinion of Scalia ] | Other [ Opinion of Breyer ] |
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JEFFERSON COUNTY, ALABAMA, PETITIONER v. WILLIAM M. ACKER, Jr., SENIOR JUDGE, UNITED STATES DISTRICT COURT, NORTHERN DIS-
TRICT OF ALABAMA, and U. W. CLEMON,
JUDGE, UNITED STATES DISTRICT
COURT, NORTHERN DISTRICT
OF ALABAMA
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
[June 21, 1999]
Justice Scalia, with whom The Chief Justice, Justice Souter, and Justice Thomas join, concurring in part and dissenting in part.
An officer of the federal courts may remove an action commenced against him in state court “for any act under color of office or in the performance of his duties.” 28 U.S.C. § 1442(a)(3) (emphasis added). In my view, respondents have failed to show a “
Refusing to pay a tax, even an unconstitutional one, is not an action required by respondents’ official duties, nor an action taken in the course of performing their official duties (as was, for example, the alleged physical abuse of an inmate by prison officials in Willingham, supra). Judges Acker and Clemon may well have been motivated by a desire to vindicate the interests of the federal judiciary. But their refusal to turn over money from their personal funds was not related to the responsibilities of their judicial office.
The opinion for the Court does not dispute this. Instead, it claims that holding the causation requirement unsatisfied would merge the merits issue with the removal issue. Ante, at 6—7. Since, the Court appears to reason, this fee might be unconstitutional if it is imposed upon the function of being a federal judge (the merits question), holding that these suits were not brought “for” their being federal judges would in effect decide the merits. That is illogical. What the fee is imposed upon, and what the suits are for are two different questions.1 If the cases were remanded to state court, respondents would remain free to argue that the burden of this exaction is upon the function of being a federal judge, rather than upon income. To be sure, the facts would be more favorable for that argument if the ordinance had been enforced by a different sort of suit, which would have qualified for removal–for example, suits seeking to enjoin respondents from performing their duties rather than suits to collect the unpaid “license fee.” But even in the present suits, which do not qualify for removal, respondents could argue that this is a charge prohibited by the intergovernmental tax immunity doctrine. Deciding that the cases were improperly removed would simply mean that that defense would have to be made in state court. For although the removal statute creates an exception to the well-pleaded-complaint doctrine, the exception is not for all federal-question defenses asserted by federal officials, but rather for all suits “for any act under color of office or in the performance of [official] duties.”
It is enough for the Court that respondents have identified some connection, albeit remote, with their federal offices. See Ante, at 7. The majority says that all the circumstances giving rise to these suits must be considered, and “those circumstances encompass holding court in the county and receiving income for that activity.” Ibid. In other words, but for the judges’ working–an act unquestionably within the scope of their official duties–they would not have owed taxes under Ordinance No. 1120 and thus would not have been sued. “But for” causation, however, is not enough.
In Maryland v. Soper (No. 2), 270 U.S. 36 (1926), four prohibition agents and their chauffeur were prosecuted in state court for lying under oath to the state coroner, and they sought to remove the case under a predecessor of the current federal-officer removal statute.2 According to the agents, they were on their way to report to their superior about a freshly discovered illegal still when they came upon a mortally wounded man in the road. Had they not been en route to their superior, the agents argued, they would never have made the discovery that required them to testify before the coroner. We rejected the argument that this established a sufficient connection between their official duty and the obstruction-of-justice prosecution. Although reporting to their superior was certainly among their official duties, the act of testifying before the coroner was not, and it was the latter act “on account of” which (or in the terms of the current removal statute, “for” which) they were prosecuted. Id., at 42. So also here, it is not enough that respondents’ performance of their judicial duties was a link in the chain of events that brought about these suits–that had they not performed their official duties, the fee would not have been assessed, and had the fee not been assessed they would not have been sued for failure to pay it. Acker and Clemon were sued for their refusal to pay the tax–and that, as I have said, is not an act required by, or even performed in connection with, cf. Willingham v. Morgan, 395 U.S. 402 (1969), the duties of their judicial office.
None of this is to suggest, of course, that removal is justified only when the federal officer can prove that the act prompting suit is, beyond doubt, an official one. If that were the case, the merits truly would be subsumed within the jurisdictional question of removal; the defense of qualified immunity, for example, would always be resolved as a threshold jurisdictional question–an odd result when the main point of 28 U.S.C. § 1443 is to give officers a federal forum in which to litigate the merits of immunity defenses. See Willingham v. Morgan, supra, at 407. The point is only that the officer should have to identify as the gravamen of the suit an act that was, if not required by, at least closely connected with, the performance of his official functions. 28 U.S.C. § 1443; Maryland v. Soper (No. 1), supra, at 33; Willingham v. Morgan, supra, at 407—409. What should defeat respondents here is that even though their federal defense is colorable, their claim to have acted in official capacity in not paying the fee is not.
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Notes
1. Some confusion may have resulted from the fact that the Government argued this issue in a way that did conflate the merits with removal. See ante, at 6. It said that there was no causal connection because “[t]he tax . . . was imposed only upon [the judges] personally and not upon the United States or upon any instrumentality of the United States.” Brief for United States as Amicus Curiae 20. As I explain above, however, proving who the fee was imposed upon does not answer the question of what the suit is for.
2. Section 33 of the Judicial Code provided: “That when any civil suit or criminal prosecution is commenced in any court of a State against any officer appointed under or acting by authority of any revenue law of the United States . . . or against any person acting under or by authority of any such officer, on account of any act done under color of his office . . . the said suit or prosecution may at any time before the trial or final hearing thereof be removed for trial into the district court next to be holden in the district where the same is pending . . . . 39 Stat. 532, ch. 399.”