PETITION FOR WRIT OF MANDAMUS THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Criminal Action No. 79-198
Before Aldisert, Hunter and Higginbotham, Circuit Judges.
We are presented by the Commonwealth of Pennsylvania with a petition for a writ of mandamus to compel United States District Judge Clarence Newcomer to remand to state court a state criminal prosecution against a federal postal employee. The case was removed to federal district court by the defendant pursuant to 28 U.S.C. § 1442(a)(1) which provides for removal of cases against "(a)ny officer of the United States . . . for any act done under color of such office."*fn1 Because we believe this case satisfies the requirements of section 1442(a)(1) and because we believe the petition was filed within the time constraints of 28 U.S.C. § 1446(c),*fn2 we will deny the petition for mandamus.
While driving his mail route on March 22, 1979, Ronald Jordan, a truck driver of the United States Postal Service, was involved in an accident which claimed the life of a pedestrian. Jordan was charged with vehicular homicide.*fn3
The defendant was convicted in a bench trial in the Municipal Court of Philadelphia. He then filed for a trial de novo in the court of common pleas. On the day before his arraignment in common pleas court, the defendant petitioned for removal to the United States District Court for the Eastern District of Pennsylvania. The petition alleged, inter alia, that at the time of the accident "Ronald Jordan was acting as an employee of the United States Postal Service . . . within the scope of his office and employment as a postal truck driver."
The Commonwealth moved for a remand to state court, arguing that removal was improper because the defendant did not allege that he was acting under "color of law or in the performance of his duties", and that negligent driving by postal employees did not constitute such action. The Commonwealth also contended that the removal was not timely, having been filed subsequent to trial in the municipal court. The motion to remand was denied by the district court. The Commonwealth then filed this petition for mandamus to compel the remand of the case.
Our jurisdiction over this case derives from 28 U.S.C. § 1651 which grants us the power to "issue all writs necessary or appropriate in aid of (our) . . . jurisdiction and agreeable to the usages and principles of law." 28 U.S.C. § 1651 (1976). The writ of mandamus, however, is a drastic remedy, which is reserved for use in extraordinary situations. Kerr v. United States, 426 U.S. 394, 402, 96 S. Ct. 2119, 2123, 48 L. Ed. 2d 725 (1976); Will v. United States, 389 U.S. 90, 95, 88 S. Ct. 269, 273, 19 L. Ed. 2d 305 (1967); Roberts v. United States District Court, 339 U.S. 844, 845, 70 S. Ct. 954, 955, 94 L. Ed. 1326 (1950). Two factors militate in favor of this restraint in the use of the writ. First, and most important, overuse of the writ imperils the policy of avoiding piecemeal litigation. Kerr v. United States, 426 U.S. at 403, 96 S. Ct. at 2124; see Citibank, N. A. v. Fullam, 580 F.2d 82, 89 (3d Cir. 1978). Second, a mandamus action places the district judge in the role of litigant, "obliged to obtain personal counsel or to leave his defense to one of the litigants (appearing) before him" in the underlying case. Kerr v. United States, 426 U.S. at 402, 96 S. Ct. at 2123 (quoting Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 384-85, 74 S. Ct. 145, 148-149, 98 L. Ed. 106 (1953)).
The writ of mandamus has been analogized to equitable remedies, to be granted or withheld in the discretion of the issuing court. See Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 25-26, 63 S. Ct. 938, 941, 87 L. Ed. 1185 (1943). Thus, mandamus should not issue where other adequate remedies exist. Kerr v. United States, 426 U.S. at 403, 96 S. Ct. at 2124; Roche v. Evaporated Milk Ass'n, 319 U.S. at 26, 63 S. Ct. at 941. It has also been stated that the party seeking mandamus establish his right by a "clear and indisputable" showing. Kerr v. United States, 426 U.S. at 403, 96 S. Ct. at 2124 (quoting Bankers Life & Cas. Co. v. Holland, 346 U.S. at 384, 74 S. Ct. at 148).
Notwithstanding the limits on its use, the denial of a motion to remand to state court a state criminal prosecution which was removed to federal district court has traditionally been deemed an extraordinary case for which mandamus is appropriate. Roche v. Evaporated Milk Ass'n, 319 U.S. at 31 n. 5, 63 S. Ct. at 944 n. 5; see Colorado v. Symes, 286 U.S. 510, 520, 52 S. Ct. 635, 638, 76 L. Ed. 1253 (1932); Maryland v. Soper (No. 1), 270 U.S. 9, 29-30, 46 S. Ct. 185, 189, 70 L. Ed. 449 (1926). When a criminal prosecution is removed, the federal judiciary interferes with the state's fundamental interest in the administration of its own criminal justice system. Maryland v. Soper, 270 U.S. at 29, 46 S. Ct. at 189; see Will v. United States, 389 U.S. at 95, 88 S. Ct. at 273. Moreover, it was reasoned that
Except by the issue of mandamus, (the State) is without an opportunity to invoke the decision of this Court upon the issue it would raise. The order of the United States District Judge refusing to remand is not open to review on a writ of error, and a judgment of acquittal in that court is final.
Maryland v. Soper, 270 U.S. at 30, 46 S. Ct. at 189; see Roche v. Evaporated Milk Ass'n, 319 U.S. at 31 ...