to examine whether the action is properly before a Federal tribunal.
Defendants base their claim of jurisdiction upon 28 U.S.C. § 1442(a)(1), authorizing removal to a Federal Court of 'a civil action or criminal prosecution commenced in a state court against any of the following persons * * * (1) any officer of the United States or an agency thereof, or person acting under him, for any act under color of such office * * *.'
Defendants argue that because of its essential elements, the instant case is one contemplated by this statute. In their brief in opposition to the motion to remand, defendants analyze these elements as being:
'1. Receipt of compensation from the United States government by non-residents of Philadelphia
'2. 'For work done or services performed or rendered' in the course of federal employment
'3. 'In a United States government installation in Philadelphia,' which appears from the petition for removal to be a place under the exclusive jurisdiction of the United States pursuant to Article 1, § 8, clause 17 of the Constitution of the United States
'4. Failing, neglecting or refusing 'to file returns or to pay * * * the taxes due' the City of Philadelphia by reason of the foregoing circumstances.'
Defendants assert that since elements 1, 2 and 3 are transactions solely between the Government and its employees and thus done under color of office, this prosecution 'undertakes to make the very performance of those duties, fully authorized and actually directed by the United States Government, the principal elements of the crime charged.'
The Court cannot agree with this analysis. The elements which defendants feel are so essential to the City's case are not really involved here at all. This action was not instituted because the United States paid wages, nor because the defendants earned them, but simply because a tax on those wages has not been paid. The failure of individual private citizens to pay a wage tax is the crux of the City's case. The City of Philadelphia does not seek to hamper, impede or otherwise affect in any way defendants' performance of duties connected to their positions with the United States. It is this lack of interference with Federal duties which distinguishes the instant case from the authorities cited by defendants: Colorado v. Symes, 286 U.S. 510, 52 S. Ct. 635, 76 L. Ed. 1253 (1932); Johnson v. Maryland, 254 U.S. 51, 41 S. Ct. 16, 65 L. Ed. 126 (1920); Tennessee v. Davis, 100 U.S. 257, 25 L. Ed. 648 (1879).
Under § 1442(a)(1), removal is available where the prosecution is for an act done under color of office. While the statute does not necessarily require that the act be specifically directed or authorized by statute, executive order or treaty, we cannot go so far as to say that the refusal to pay a local tax on the grounds that one is a Federal employee is an act 'under color' of Federal office, and no authority has been indicated that would support such a reading of the law. Defendants' Federal status may or may not be a defense to this action, but that is not the question presently before the Court. The assertion of that defense is not a sufficient ground to support removal to the Federal Court. This case is a controversy between the City of Philadelphia and the defendants as individuals and will be remanded to the County Court of Philadelphia as there is no jurisdiction in this Court.
AND NOW, to wit, this 28th day of February, 1963, for the reasons set forth in the foregoing Opinion, it is ORDERED, ADJUDGED and DECREED that plaintiff's motion to remand to the County Court of Philadelphia be and it is hereby GRANTED; defendants' motion for summary judgment is hereby DENIED.
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