In Bohlander v. Independent School District No. 1 of Tulsa Co., Okl., supra, the Tenth Circuit held that the school board of Tulsa, Oklahoma could remove to federal district court pursuant to Section 1443(2) a state court action brought by patrons of a school district to enjoin the school board from implementing a portion of a plan to eliminate racial discrimination in its schools. The plan had been submitted to and approved by the United States District Court for the Northern District of Oklahoma in an action brought by the Attorney General of the United States pursuant to the Civil Rights Act of 1964. The Tenth Circuit held that the school board, in undertaking to carry out the directions of the federal court in an order which was authorized by federal civil rights statutes, was acting under color of authority derived from a law conferring specific rights of racial equality, because the school board was acting with and for federal officers in executing their duties under the Civil Rights Act of 1964. Similarly, in Buffalo Teachers Federation v. Board of Education, supra, the court held that where the school board asserted that the actions for which it had been sued by the teachers federation in state court were attempts to carry out an affirmative desegregation order of the federal court, the board had the right to remove the action under Section 1443(2). The court stated that the school officials were persons authorized to act for a federal officer under the "color of authority" clause of Section 1443(2) as that clause was interpreted in Greenwood v. Peacock, supra, and that in this situation the federal officer was the court.
As heretofore stated, 28 U.S.C. § 1441(b) also provides a basis entitling the defendants to remove this action to this Court. Plaintiffs in their complaint seek to enjoin all construction of the Whitman Park townhouses which construction was ordered by this Court in RAB v. Rizzo, supra. Section 1441(b) provides for removal of "any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States ... without regard to the citizenship or residence of the parties...." Although an action is not removable when the federal question appears only in the answer or in the petition for removal, nevertheless, as stated in 1A Moore's Federal Practice P 0.160, at 185-87: "A suit may, however, be removed, where the real nature of the claim asserted in the complaint is federal, irrespective of whether it is so characterized; or where the plaintiff inadvertently, mistakingly or fraudulently conceals the federal question that would necessarily have appeared if the complaint had been well pleaded." The Court finds that the real nature of the claim asserted in the plaintiffs' complaint is federal.
The thrust of the complaint is clear. The plaintiffs seek to enjoin all construction activity at the Whitman site which construction activity was ordered by this Court in RAB v. Rizzo, supra. As pointed out in 7 Moore's Federal Practice P 60.38(1) at 646-47: "An action to enjoin or otherwise obtain relief from a federal judgment involves the validity of the judgment as a continuing obligation; the substantive principles of the action are federal; and, we believe, presents a general federal question. If the independent action is brought in a state court it may be removed to the appropriate federal court on the basis of a general federal question."
As heretofore pointed out, plaintiffs obtained a temporary restraining order stopping construction by filing this action in the Court of Common Pleas of Philadelphia County on Sunday, February 1, 1981, despite the fact that two days earlier, on Friday, January 30, 1981, plaintiffs' counsel was present at the conference at which this Court ordered that all construction activity at the Whitman site should cease until the safety of the McQuilken family and the safety of the homes in the area were ensured and until engineering studies could be made concerning the condition of the homes in the vicinity of the Whitman site. The Court also finds therefore that the plaintiffs inadvertently, mistakingly, or for some reason concealed the real nature of the claim by failing to point out in the complaint that although the construction of the townhouses had been ordered by this Court, this Court had nevertheless ordered the construction to cease until engineering studies could be completed.
Accordingly, an Order will be entered by this Court denying the plaintiffs' motion to remand since the action was properly removed to this Court pursuant to either or both Sections 1441(b) and 1443(2).
II. Motion to Dismiss for Failure to Join Necessary and Indispensable Parties
Defendants A&R Development Corporation and Jolly Company, Inc. have moved pursuant to F.R.Civ.P. 12(b)(7) to dismiss the plaintiffs' complaint on the ground that the plaintiffs have failed to join HUD, RDA and the City as necessary and indispensable parties within the meaning of F.R.Civ.P. 19.
A&R is the developer on the Whitman site pursuant to a contract with PHA. Jolly is the general contractor engaged to perform the construction work at Whitman. The contracts with A&R and Jolly were caused to be entered into pursuant to this Court's Order of November 5, 1976 in RAB v. Rizzo, supra. The townhouses at the Whitman site are being constructed pursuant to a Turnkey Contract of Sale between PHA and A&R under which A&R receives reimbursement for the costs of the work together with a fixed fee. The contract between PHA and A&R (which is attached as Exhibit D to plaintiffs' complaint) provides that costs include:
(12) Losses and related expenses, not compensated by insurance or otherwise sustained by the Seller in connection with the work, provided that they have resulted from causes other than the fault or neglect of the Seller ...
(15) Costs incurred due to emergencies affecting the safety of persons and property ...