Greenberg v. Veteran Additional Memorandum of the Removing Respondents in Support of Removal

    UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

---- ------------------------------- — -----------— -------- - X
In the Matter of the Application of 
MYLES GREENBERG and FRANCES M. :MULLIGAN,

Petitioners, 89 Civ. 0591 (GLG)
-against-

ANTHONY F. VETERAN, et al.,
•Respondents.

-- --------- — ---■-- x

ADDITIONAL MEMORANDUM OF THE REMOVING 
__RESPONDENTS IN SUPPORT OF REMOVAL

PAUL, WEISS, RIFKIND, WHARTON & GARRISON 
A T T O R N E Y S  A T  L A W

1285 A V E N U E  O F  T H E  AM ER ICAS, N E W  YORK, N  Y. 10019



Table of Contents

Page
Preliminary Statement....... . 2
I - PULLMAN ABSTENTION IS NOT APPROPRIATE IN

THIS CASE. ...................................... . 3
A. The Clarity of State Law. ........ 4
B. The Absence of Interdependency............... 8
C. The Immateriality of Alternative Grounds..... 9

II - THE CIRCUMSTANCES HERE MAKE THE EXERCISE OF
FEDERAL JURISDICTION COMPELLING.................. 10

III - THE COURT'S POWER TO REMAND STATE ISSUES
IS AT BEST LIMITED............................... 15
A. The Thermtron Bar to Discretionary

Remand.  ....................... . 15
B. The Carnegie-Mellon Extra-Statutory

Power.................... ............... 17
C. The Open Question Here....................... 21

Conclusion 24



UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

— — — x
In the Matter of the Application of 
MYLES GREENBERG and FRANCES M. :MULLIGAN,

Petitioners, 89 civ. 0591 (GLG)
-against-

ANTHONY F. VETERAN, et al..
Respondents.

__— -----    —     —-- — — — — •— ■— x

ADDITIONAL MEMORANDUM OF THE REMOVING 
RESPONDENTS IN SUPPORT OF REMOVAL

Pursuant to the Court's instruction at the Febru­
ary 2, 1989 conference, the removing respondents submit this 
memorandum with respect to two questions: (1) whether
Pullman abstention is appropriate as to the federal constitu­
tional issue raised; and (2) whether the Court has authority 
to remand state law issues raised in this proceeding.A//

1/ At the conference, the Court also invited further 
briefing on whether the Article 78 proceeding was 
removable. The removing respondents addressed this 
matter in their conference memorandum, dated February 1, 
1989, and do not seek to supplement that discussion, 
except as set forth in the separate memorandum submitted by respondents Veteran and Tolchin.



2

Preliminary Statement
An Article 78 proceeding, by its nature, calls upon 

the court to review the conduct of state or local government 
officials, and commonly the case includes state law issues. 
This characteristic alone does not make the proceeding 
unsuitable for adjudication in federal court. When the 
federal court's removal jurisdiction is properly invoked, the 
court ordinarily should hear the case, just as it hears cases 
under 42 U.S.C. § 1983, which similarly challenge state 
action and often raise related state law questions.

To be sure, the principle favoring adjudication of 
cases falling with the federal court's removal jurisdiction 
is not unyielding. But there must be a recognized basis for 
relegating the parties to litigation of state law issues in 
the state courts and for staying disposition of a federal 
constitutional issue pending state proceedings. Here, we 
respectfully submit, there is no such basis. Pullman absten­
tion would be inappropriate, and, unless the court abstains, 
there are no grounds to remand the state law issues.

Indeed, the considerations favoring federal adjudi­
cation are particularly strong here. Supervisor Veteran 
(together with Town Clerk Tolchin) removed this proceeding 
under a statute, 28 U.S.C. § 1443(2), which applies when a 
state official is sued for refusing to enforce state law 
because of the supremacy of federal civil rights law prohibit­
ing racial discrimination. An allegation of a conflict



3

between federal and state law is necessarily part of every 
case removed under this statute. Nevertheless, Congress 
promised that this court would be open to hear actions 
brought against state officials in the position of Supervisor 
Veteran.

Congress opened the doors of this courthouse not 
simply to permit the federal defense to be heard -- for the 
state court in theory is just as able to perform that func­
tion as is this court. Rather, Congress made the federal 
forum available to insulate this type of action against state 
or local parochialism. Thus, there is a special need to keep 
the federal forum available on a § 1443(2) civil rights 
removal. In these circumstances, the comity principles 
underlying Pullman abstention have limited application.

On the other hand, by hearing the entire case, this 
Court acts in the finest tradition of federalism. It keeps 
the promise that Congress has made to state officials who 
rely on the supremacy of federal civil rights law, despite 
the community pressure or local unpopularity that they may be 
called on to bear.

I
PULLMAN ABSTENTION IS NOT 
APPROPRIATE IN THIS CASE

Federal court abstention is the exception, not the 
rule. See. e.g.. Colorado River Water Conservation District



4

v. United States. 424 U.S. 800, 813 (1976). Under the
doctrine of Railroad Commission of Texas v. Pullman Co., 312
U.S. 496 (1941), abstention is appropriate "when difficult
and unsettled questions of state law must be resolved before
a substantial federal question can be decided." Hawaii
Housing Authority v. Midkiff. 467 U.S. 229, 236 (1984)
(emphasis added). Thus, in this Circuit:

[T]he three essential conditions for invocation of the 
doctrine of rPullman] abstention are that the state 
statute be unclear or the issue of state law be 
uncertain. . . , that resolution of the federal issue
depend upon the interpretation to be given to the state law. . . , and that the state law be susceptible of aninterpretation that would avoid or modify the federal 
constitutional issue.

McRedmond v. Wilson. 533 F.2d 757, 761 (2d Cir. 1976) (cita­
tions omitted).

This action does not meet any of these "essential 
conditions." Accordingly, Pullman abstention is inappropri­
ate .
A. The Clarity of State Law

Section 2-206(1) of the New York Village Law 
authorizes a town supervisor, such as Supervisor Veteran, to 
render a decision when presented with a village incorporation 
petition. In pertinent part, the statute provides as fol­
lows :

The supervisor . . . shall hear objections which may be 
presented as to the legal sufficiency of the petition 
for incorporation based upon any of the following 
grounds:



5

a. That a person signing such petition was not qualified therefor;
b. If it is alleged that the petition is submit­
ted on the basis that the persons signing such 
petition constitute twenty percent of the residents 
in such territory qualified to vote for officers of 
a town in which all or part of such territory is 
located, that such allegation is false?
c. If it is alleged that the petition is submit­
ted on the basis that the persons signing such 
petition are the owners of more than fifty percent 
in assessed valuation of the real property in such 
territory or in full valuation of the real property 
in each part of each town in such territory and 
computed separately for each such part, as the case 
may be, assessed upon the last completed assessment 
roll or rolls of the town or towns in which all or 
part of such territory is located, that such allegation is false;
d. That such territory is part of a city or village;
e. That if such territory is less than an entire town, it contains more than five square miles and the limits of such territory are not coterminous with the entire boundaries of one school, fire, 
fire protection, fire alarm, town special or town 
improvement district and the limits of such terri­tory are not coterminous with parts of the bounda­ries of more than one school, fire, fire protec­
tion, fire alarm, town special or town improvement 
district, all of which are wholly contained within such limits and within one town;
f. That such territory does not contain a popula­
tion of at least five hundred regular inhabitants;
g. That the petition in any other specified 
respect does not conform to the requirements of this article.

(McKinney 1973 & Supp. 1988).
Section 2-206(1) says nothing about the authority

of a town supervisor to examine the constitutionality of an



6

incorporation effort. Moreover, while § 2-206 (1) (g) does 
permit a review for conformity with the Village Law gener­
ally, there is no open-ended provision in the statutory scheme 
that requires a petition to be, for example, "consistent with 
law" or even "in the public interest."

Thus, § 2-206(1) is unambiguous as to the inquiry 
to be undertaken. The language of the statute is not 
susceptible of an interpretation permitting investigation of 
the constitutionality of an incorporation petition. The 
abstract possibility that a state court might somehow inter­
pret the statute to authorize such a review will not support 
Pullman abstention. As the Supreme Court said in Hawaii 
Housing Authority, supra. 467 U.S. at 237:

[T]he relevant inquiry is not whether there is a bare, 
though unlikely, possibility that state courts might 
render adjudication of the federal question unnecessary. 
Rather, "[w]e have frequently emphasized that abstention 
is not to be ordered unless the statute is of an uncertain nature, and is obviously susceptible of a limiting construction."

Quoting Zwickler v. Koota. 389 U.S. 241, 251 and n.14 (1967). 
See also Wisconsin v. Constantineau. 400 U.S. 433, 439 
(1971); Moe v. Dinkins. 635 F.2d 1045, 1049 (2d Cir. 1980)
("we will not elevate resourceful conjurations to probable 
interpretations in the name of pyrrhic comity").

McRedmond was similar to this case. There, the 
basic question was whether the New York statutory scheme for



7

adjudging children as Persons in Need of Supervision ("PINS")
violated constitutional protections. The PINS statutes were
relatively clear, and the New York Court of Appeals itself
had recognized that the due process clause applied. Thus,
the constitutional issue turned on questions "of fact rather
than of statutory interpretation." 533 F.2d at 762. The
Second Circuit held that Pullman abstention was inappropriate:

We have no reason to believe that the federal court is 
any less equipped to engage in this factual inquiry than 
is its counterpart at the state level.

Id. at 762.
This case is analogous. The federal constitutional 

issue does not turn on interpretation of the New York Village 
Law. Nor is there likely to be any controversy that:
(1) the United States Constitution is the supreme law of the 
land; (2) Supervisor Veteran has a duty to uphold the Consti­
tution; and (3) the Fifteenth Amendment prohibits using 
neutral state law provisions to gerrymander local government 
boundaries on the basis of race. See U.S. Const, art. VI, 
els. 2 and 3; Gomillion v. Lightfoot, 364 U.S. 339 (I960); 
Teeval Co. v. Stern. 301 N.Y. 346, 365 (1950), cert, denied, 
340 U.S. 876 (1950) (federal law is "as much the policy of 
the State of New York as if the enactment thereof had eman­
ated from our state legislature").

As in McRedmond, the federal issue depends on a 
question of fact: are the jagged Mayfair Knollwood



8

boundaries impermissibly discriminatory. This Court does not 
need state court assistance to resolve this fact issue. No 
Village Law interpretation will assist this Court in under­
taking the necessary factual inquiry. See also Seide v. 
Prevost. 536 F. Supp. 1121, 1134 (S.D.N.Y. 1982) and Lucas v. 
Wasser. 425 F. Supp. 955, 959-60 (S.D.N.Y. 1976) (abstention 
was inappropriate where action turned on fact issues, not 
questions of statutory interpretation).

Thus, this case does not meet either the first or 
third McRedmond conditions for Pullman abstention: state law
is neither uncertain nor susceptible of an interpretation 
that would avoid the constitutional question.
B. The Absence of Interdependency

McRedmond also requires that the federal constitu­
tional issue "depend" upon the interpretation given the state 
law. Before Pullman abstention is proper, resolution of a 
state issue must be logically necessary to dispose of the 
federal question.

Weiser v. Koch. 632 F. Supp. 1369 (S.D.N.Y. 1986), 
is illustrative. There, a homeless person challenged her 
summary eviction from a shelter on procedural due process 
grounds. The court abstained under the Pullman doctrine.
The uncertain state law issue was whether New York recognized 
a right to shelter. That issue necessarily had to be 
resolved to determine whether there was "a protectable



9

property interest subject to federal due process scrutiny."
Id. at 1382. Thus, "[t]he state law issues [were] logically 
preliminary to the federal constitutional issue." Id. at 
1383.

There is no similar logical relationship here. 
Supervisor Veteran asserts an obligation to uphold the 
federal (and state) constitutional prohibition against 
discrimination on the basis of race. That obligation dic­
tated a decision to reject the Mayfair Knollwood incorporation 
petition. Resolution of this federal claim does not require 
any prior interpretation of state law.

Because the federal question presented in this case 
does not depend on an interpretation of state law, Pullman 
abstention is inappropriate.
C. The Immateriality of Alternative Grounds

Finally, Pullman abstention is not warranted on the 
theory that Supervisor Veteran based his decision to reject 
the petition on alternative grounds that applied state law to 
the facts. The Pullman doctrine requires the presence of an 
uncertain state law issue —  not the presence of a fact issue 
arising under an unambiguous state law. Thus, abstention is 
not appropriate merely because there exists a possible state 
law ground for decision that obviates the need to reach the 
federal constitutional issue. As the Second Circuit said in 
McRedmond. 533 F.2d at 761-62:



10

[W]here a state statute is unambiguous the court must 
perform its adjudicative duty and has no right to 
abstain merely because a state court decision might 
render a federal adjudication unnecessary.

Accord. Alliance of American Insurers v. Cuomo. 854 F.2d 591,
602 (2d Cir. 1988). Cf. Cavanagh v. Brock, 577 F. Supp. 176,
180-81 and n.4 (E.D.N.C. 1983) (three-judge court) (court
declined to abstain because "the state constitutional issue
[was] not sufficiently uncertain" and resolved the case on

2 /state law grounds).
II

THE CIRCUMSTANCES HERE MAKE THE 
EXERCISE OF FEDERAL JURISDICTION COMPELLING
The "virtually unflagging obligation" of the 

federal courts "to exercise the jurisdiction given them" is

2/ At the February 2 conference, the Court analogized this 
Article 78 proceeding to a habeas corpus petition, where 
the "exhaustion requirement" mandates prior presentation 
of constitutional issues to the state court. We 
respectfully disagree with the analogy. The federal/state tension inherent in habeas corpus 
proceedings is sui generis. The writ arises (generally) 
from criminal matters. The federal habeas court hears 
the case only after a full state court trial and appeal 
process. The federal statute itself requires 
exhaustion. 28 U.S.C. § 2254(b). By contrast, here, 
removal jurisdiction empowers this Court to hear, in the 
first instance, the action challenging Supervisor 
Veteran's decision. If a concept of exhaustion were 
applied, the very nature of the proceeding would tend to 
negate the exercise of removal jurisdiction. This is 
particularly so when removal is based on § 1443(2), 
which by necessity presents a conflict between federal 
civil rights law and state law.



11

well recognized. Colorado River Water Conservation District 
v. United States. 424 U.S. 800, 817 (1976). Thus, the 
extraordinary decision to abstain is limited to "special 
circumstances." Lake Carriers1 Ass'n v. MacMullan. 406 U.S. 
498, 509 (1972). Here, the special circumstances militate in 
favor of adjudication, not abstention.

First, this case is before the court under a 
removal statute intended specifically to allow state offi­
cials to select a federal forum in which to adjudicate their 
refusal to follow state law because of the supremacy of 
federal civil rights law barring racial discrimination. The 
congressional decision to offer a federal "safe harbor" in 
these limited circumstances, and the state official's deci­
sion to accept it, are entitled to deference. See White v. 
Wellington. 627 F.2d 582 (2d Cir. 1980) (Kaufman, C.J., 
concurring).

In this respect, removal under § 1443(2) is akin to 
that offered under § 1442 to federal officers sued "for any 
act under color of such office . . . ." Under § 1442,
"[fjederal jurisdiction rests on a 'federal interest in the 
matter' . . . , the very basic interest in the enforcement of
federal law through federal officials." Willingham v.
Morgan. 395 U.S. 402, 406 (1969) (guoting Poss v. Lieberman, 
299 F.2d 358, 359 (2d Cir.), cert, denied. 370 U.S. 944 
(1962)). In such cases, "Congress has decided that federal



12

officers, and indeed the Federal Government itself, require 
the protection of a federal forum.” Willingham. 395 U.S. at 
407. That protection is needed both to permit "trial upon 
the merits of the state law question free from local inter­
ests or prejudice" and to enable the federal officer "to have 
the validity of his immunity defense adjudicated in a federal 
forum." Arizona v. Manvpennv. 451 U.S. 232, 242 (1981). 
Accordingly, the Supreme Court has cautioned against frus­
trating the policies underlying § 1442 by "a narrow, grudging 
interpretation" of the removal statute. Willingham, 395 U.S. 
at 407. See also Malone v. Longo. 463 F. Supp. 139, 141 
(E.D.N.Y. 1979) (removal under § 1442 is "not dependent upon 
the discretion of the court").

Section 1443(2) is based on a comparable "federal 
interest" -- the interest in assuring that state officers 
uphold the supremacy of federal law prohibiting race discrim­
ination, regardless of conflicting state law. That interest 
similarly should not be frustrated —  either by a cramped 
interpretation of the removal statute or by an excessive 
application of the abstention doctrine.

This does not mean that abstention is never proper 
in a case removed under § 1443(2). In order, however, to 
outweigh the congressional decision underlying § 1443(2) 
removal jurisdiction, the considerations favoring abstention 
should be uncommonly strong. As we have seen, this is not



13

such a case: it meets none of the traditional conditions for
Pullman abstention, much less the heightened test that 
§ 1443(2) requires, Cf. Amsterdam, Criminal Prosecutions 
Affecting Federally Guaranteed Civil Rights: Federal Removal
and Habeas Corpus Jurisdiction to Abort State Court Trial,
113 U. Pa. L. Rev. 793, 828-30 (1965) (arguing that the 
overall history of the reconstruction era civil rights acts 
counsels resolving fair doubt in favor of federal trial 
jurisdiction)

Moreover, as noted earlier, the federal constitu­
tional issue in this case is not a particularly difficult 
one. That too militates against abstention: ”[W]hen the
unconstitutionality of the particular state action is clear, 
a federal court need not abstain from addressing the consti­
tutional issue pending state court review." Thornburgh v. 
American College of Obstetricians and Gynecologists. 476 U.S. 
747, 756 (1986).

In addition, unlike a typical abstention case, a 
ruling here would not threaten any significant state program

3/ Similarly, 28 U.S.C. § 1447(d) precludes appeals from 
remand orders, except where the case is removed under § 1443. Enacted as part of the Civil Rights Act of 
1964, this exception reflects the congressional judgment 
that the availability of a federal forum should be 
closely protected in civil rights cases such as this.



14

or policy. The controversy arises from a local effort to 
incorporate, based on a specific set of facts. A federal 
court decision upholding Supervisor Veteran's determination 
of unconstitutional discrimination would halt this incorpora­
tion effort. But it would have only a local impact. This is 
a far cry from the type of interference with matters of 
statewide concern that Pullman abstention is intended to 
avoid. See generally Field, Abstention in Constitutional 
Cases: The Scope of the Pullman Abstention Doctrine. 122 U.
Pa. L. Rev. 1071, 1093-96, 1104-05, 1123-24 (1974).

Finally, it is far from clear what state court 
proceeding should be brought to present any state law issue 
that the Court may believe should be litigated. In the more 
common situation, the federal plaintiff has available a state 
remedy to present the facts giving rise to the federal claim. 
By contrast, this Article 78 proceeding is the means by which 
to review Supervisor Veteran's decision. To require that one 
side or the other try to begin a new proceeding is only 
likely to complicate. And, if the Court has in mind a remand 
of certain issues —  thus dividing the Article 78 itself 
between the state and federal courts —  the legal basis for 
proceeding in this fashion is questionable. As we demon­
strate below, a remand to the state court of only certain 
issues, if permissible at all, would only be proper if the 
Court were to abstain.



15 v

THE COURT'S POWER TO REMAND 
STATE ISSUES IS AT BEST LIMITED

The authority to remand after removal is set forth 
in 28 U.S.C. § 1447(c), which permits a "case" to be remanded 
where it was "removed improvidently and without jurisdic­
tion. . . . "  The statute itself does not permit remand on 
broad discretionary grounds. Whether there is an inherent 
discretionary power to remand in the circumstances of this 
case is uncertain.
A. The Thermtron Bar to Discretionary Remand

In Thermtron Products. Inc, v. Hermansdorfer. 423
U.S. 336 (1976), the district court remanded because of its
federal docket conditions. The Supreme Court held that
§ 1447(c) did not permit such a remand. Id. at 344-45. The
Court cited with approval lower federal court holdings that
"cases properly removed from state to federal court within
the federal court's jurisdiction may not be remanded for
discretionary reasons not authorized by the controlling
statute." Id. at 345 n.9. The Court also wrote:

[W]e are not convinced that Congress ever intended to 
extend carte blanche authority to the district courts to 
revise the federal statutes governing removal by remand­
ing cases on grounds that seem justifiable to them but 
which are not recognized by the controlling statute.

III

Id. at 351.



16

The Thermtron Court strongly suggested that remand 
in the exercise of discretion was unauthorized. Accordingly, 
in the decade that followed, federal courts often rejected 
such remands.

For example, in Ryan v. State Board of Elections,
661 F.2d 1130 (7th Cir. 1981), plaintiff brought a reappor-
tionment case in state court, which defendants removed. The
district court determined that it would abstain, and, on that
basis, remanded. The Seventh Circuit reversed:

Abstention is a judicially-created doctrine; its applica­
tion is discretionary. Under Thermtron a federal court 
with jurisdiction over a removed case may not remand on 
discretionary grounds.

Id. at 1134. See also Sheet Metal Workers Int'l Ass'n,
AFL-CIO v. Seay. 693 F.2d 1000, 1005 (1982), rehearing 
denied. 696 F.2d 780 (10th Cir. 1983) (court lacked power to 
remand despite finding that the state court was "the most 
equitable forum"); Levy v. Weissman, 671 F.2d 766 (3d Cir. 
1982) (court lacked power to remand for refusal to comply 
with federal local rule); Elrad v. United Life & Accident 
Ins. Co.. 624 F. Supp. 742 (N.D. 111. 1985) and Manufacturers 
& Traders Trust Co. v. Hartford Accident & Indemnity Co., 434 
F. Supp. 1053 (W.D.N.Y. 1977) (court lacked power to remand 
to permit consolidation with pending state case); Mercy 
Hospital Assoc, v. Miccio. 604 F. Supp. 1177 (E.D.N.Y. 1985)



17

(court lacked power to remand merely because state court had
. . . 4/concurrent jurisdiction).

B. The Carneaie-Mellon Extra-Statutory Power
The Supreme Court revisited the subject of remand

in Carneaie-Mellon Univ. v. Cohill, __ U.S. __, 108 S. Ct.
614 (1988). There, plaintiffs filed suit in state court, 
alleging both federal and pendent state claims. Defendants 
removed the action to federal court. Thereafter, plaintiffs 
amended their complaint to drop the federal claim. Since the 
federal guestion basis for removal was gone, plaintiffs also 
moved to remand the state claims to state court. Whether a 
remand —  instead of dismissal —  was proper in such circum­
stances had divided the lower federal courts. See id. at 
618 n.5.

The Supreme Court permitted the remand. Although 
§ 1447(c) does not authorize remand of pendent claims after 
the federal basis for removal has dissolved, the Supreme 
Court found an extra-statutory inherent power to remand under

4/ Although § 1447(c) permits remand where removal was"improvident," Ryan and other courts embraced earlier 
case law and held that "improvident" referred to a 
failure to satisfy a non-jurisdictional statutory 
element for removal. See Ryan, 661 F. 2d at 113 3,” In re 
Merrimack Mutual Fire Ins. Co.. 587 F.2d 642, 645 n.3, 
647 n.8 (5th Cir. 1978); Kaib v. Pennzoil Co., 545 
F. Supp. 1267 (W.D. Pa. 1982). This narrow definition 
assisted in limiting the grounds for remand.



18

the pendent jurisdiction doctrine of United Mine Workers v.
Gibbs. 383 U.S. 715 (1966):

[T]he pendent jurisdiction doctrine is designed to 
enable courts to handle cases involving state-law claims 
in the way that will best accommodate the values of 
economy, convenience, fairness and comity . . . .
Because in some circumstances a remand of a removed case 
involving pendent claims will better accommodate these 
values than will dismissal of the case, the animating 
principle behind the pendent jurisdiction doctrine 
supports giving a district court discretion to remand 
when the exercise of pendent jurisdiction is inappropri­
ate.

108 S. Ct. at 619.
Carneoie-Mellon thus recognized a remand power

beyond that provided for in § 1447(c), but only where the
federal basis for removal no longer was present. In Corcoran
v. Ardra Ins. Co.. 842 F.2d 31 (2d Cir. 1988), the Second
Circuit extended Carneqie-Mellon by authorizing a remand
where abstention was appropriate:

The very goals reflected in the principle that the court 
may dismiss on grounds of abstention persuade us that when the district court has decided not to hear a 
removed case on grounds of abstention, it need not 
dismiss but may instead remand.

Id. at 36. See also Naylor v. Case & McGrath. Inc.. 585 F.2d
557 (2d Cir. 1978) (power to abstain and remand recognized in
dicta); Kirkbride v. Continental Casualty Co.. 696 F. Supp.
496 (N.D. Cal. 1988).

Hence, on the current state of the law in this 
circuit, where abstention is proper in a removed case, the 
court's pendent jurisdiction power includes the authority to



19

remand state issues. But there is no authority that we have 
found to establish a similar inherent power to remand where 
the case is removed under a special statute that bases the 
court's jurisdiction on defenses asserted, instead of claims 
pleaded. (See pp. 21-23, infra.) In any event, as we 
already have seen, Pullman abstention is inappropriate here. 
Absent dismissal or abstention as to the federal claims, the 
extent of the court's power to remand state claims is 
uncertain. See Steinman, Removal. Remand and Review in 
Pendent Claim and Pendent Party Cases. 41 Vand. L. Rev. 923, 
963-64, 970, 983-84 (1988).

For instance, when the court retains jurisdiction 
of a federal claim, there is limited post-Carnegie-Mellon 
authority upholding the power to remand state law claims. In 
Contemporary Services Corp. v . Universal City Studios. Inc., 
655 F. Supp. 885 (C.D. Cal. 1987), defendants removed a RICO 
case with pendent state law claims. Some defendants on the 
state claims, however, were not named on the RICO claim, and 
there was no diversity of citizenship. Under the Ninth 
Circuit rule holding that the district courts lack subject 
matter jurisdiction over pendent parties, the court remanded 
these state law claims. Id. at 894.

The remand meant that there would be a case in 
federal court and another in state court, both arising out of 
the same basic facts. Faced with this inevitability, the



20

Contemporary Services court also remanded the remaining state 
law claims, over which it had pendent jurisdiction, so that 
all the state law issues could be heard in one case. Id. at 
895-97.

The court adopted a similar procedure in Behre v. 
United States. 659 F. Supp. 747 (D.N.H. 1987). There, 
federal officers removed under § 1442(a)(1). However, there 
were state officer defendants also named in the case, and the 
Eleventh Amendment barred the federal court from hearing the 
claims against them. The court refused to remand as to the 
federal officers because their right to remove was "abso­
lute." Id. at 750, quoting Willingham v. Morgan, supra, 395 
U.S. at 406. However, it did remand as to the state defen­
dants and as to the remaining non-federal defendants who were 
named primarily on state law claims. Id. at 751.

The lack of subject matter jurisdiction over some 
claims in both Contemporary Services and Behre required a 
partial remand, and created a necessity of two cases. 
Arguably, that was sufficient to permit a further remand of 
related state issues, which could most appropriately be tried 
with the state law case that could not be avoided. There is 
no similar lack of subject matter jurisdiction here. Thus, 
absent abstention, the Court probably lacks power to remand 
the state issues. Cf. Kelley v. TYK Refractories Co.. 860 
F.2d 1188, 1198 (3d Cir. 1988) (after reversing dismissal of



21

federal claim, court of appeals vacated remand of state
x 5/ issues)

C. The Open Question Here
We have set out this case law overview so that the 

circumscribed nature of the remand power will be clear. The 
applicability of this body of law is questionable, however. 
This proceeding is different from the cases discussed, 
particularly from Carneaie-Mellon and the ensuing cases, 
which ground the remand power in the court's inherent pendent 
jurisdiction.

Unlike those cases —  where the plaintiff's claim 
furnishes the ground for removal ■— ■ this matter is in this 
court by virtue of Supervisor Veteran's federal defense, one 
of several grounds for his decision to reject the Mayfair 
Knollwood incorporation petition. A defendant's assertion of 
federal and state law defenses against a claim simply is not

5/ A few cases have extended Carneaie-Mellon even further 
than Contemporary Services and Behre. In one instance, 
the court remanded state law claims because they 
predominated in the lawsuit, while retaining the federal 
claim itself. Brava11 v. Dart Industries, Inc., 1988 
U.S. Dist. LEXIS 742 (D. Mass. 1988). In another, the 
court used the predominancy of the state law claims as a 
ground for remanding the entire action. Harrison v. 
Texas Department of Corrections. 694 F. Supp. 226 (S.D. 
Tex. 1988).



22

analogous to a plaintiff's assertion of a federal claim and 
pendent state law claims.

A plaintiff's claims generally determine whether 
there is federal jurisdiction. Once federal jurisdiction has 
been properly invoked, under a well-developed body of law, 
the court has inherent power to exercise its discretion 
whether to hear a plaintiff's pendent state law claims, 
depending on the circumstances. Carnegie-Mellon. and the 
remand cases after it, apply this body of pendent jurisdic­
tion law to authorize remand in removal cases.

There is no comparable body of authority permitting 
a federal court to decide whether to hear state law defenses 
pleaded as alternatives to a federal defense. The very idea 
is bizarre; ordinarily, a defendant is permitted to defeat a 
plaintiff's claim on the basis of any recognizable defense 
available. To require that a defendant pursue one defense in 
federal court and others in state court would be strange 
indeed. Accordingly, it is not self-evident that the 
extra-statutory remand power first recognized in Carnegie- 
Mellon may simply be imported into a § 1443(2) removal case 
to support a remand that is not authorized by statute.

There is a strong federal policy in keeping open
the federal forum offered by § 1443(2). At the same time, 
there can be no doubt that remanding some issues in a 
§ 1443(2) case would increase the expense of litigation, and



23

probably delay its resolution. If a partial remand practice 
developed, there is little doubt that the increased expense 
and time would tend to deter § 1443(2) removal to begin with.

These considerations argue against recognizing a 
remand power, beyond that authorized in § 1447(c), in a 
§ 1443(2) removal. As the Second Circuit said in White v. 
Wellington. supra. 627 F.2d at 586, removal under § 1443(2) 
"is statutory, jurisdictional and absolute . . . when it is
found to exist." Cf. Willingham v. Morgan, supra. 395 U.S. 
at 406 (§ 1442 removal is "absolute"); Behre v. United 
States, supra. 659 F. Supp. 747 (declining to remand as to 
federal officers).

Accordingly, the distinct federal interest in 
actions removed under § 1443(2) should preclude remanding any 
part of the state official's defenses on grounds not set 
forth in § 1447(c)

6/ 28 U.S.C. § 1441(c) -- which authorizes removal where an
action contains "a separate and independent claim or 
cause of action" -- also permits a remand of issues in 
the court's discretion. However, the remand provisions 
of the statute do not apply because the removal here is 
not based on § 1441(c). Cf. Carnegie-Mellon, supra. 108
5. Ct. at 621 (§ 1441(c) does not apply to pendent 
claims); American Fire & Casualty Co. v. Finn. 341 U.S.
6, 14 (1951) ("where there is a single wrong to 
plaintiff, for which relief is sought, arising from an 
interlocked series of transactions, there is no separate 
and independent claim or cause of action under
§ 1441(c)"; footnote omitted).



24

Conclusion
Supervisor Veteran has chosen the courthouse that

Congress has promised would be open to resolve the Article 78
proceeding brought to review his decision. To abstain in
these circumstances, and to remand the state law issues to
state court, would render the federal forum illusory.
Congress, we submit, never intended the federal court to
abdicate its § 1443(2) removal jurisdiction to this extent.

For these reasons, the Court should hear this
Article 78 proceeding.
Dated: New York, New YorkFebruary 10, 1989

Respectfully submitted,

PAUL AGRESm, ESQ. r_ 
Town Attorney Town of Greenburgh 
P.0. Box 205Elmsford, New York 10523 
(914) 993-1546
Attorney for Respondents 
Anthony F. Veteran and 
Susan Tolchin

CUDDY & FEDER 
90 Maple Avenue White Plains, New York 10601 
(914) 761-1300

By CX'-M- t.Cl^yu 4 . ,^
Ruth E. Roth



25

Of Counsel:
Cameron Clark 
Melinda S. Levine 
William N. Gerson

Attorneys for Respondents 
Keren Developments, Inc. and 
Robert Martin Company

(2. k~VL- \z . ^  \ 1 ____ _______
Ruth E. Roth 
Respondent Pro Se 
90 Maple Avenue 
White Plains, New York 10601 
(914) 761-1300
PAUL, WEISS, RIFKIND, WHARTON & GARRISON 
1285 Avenue of the Americas 
New York, New York 10019 
(212) 373-3000

BY.

Attorneys for Respondents 
Anita Jordan, April Jordan, Latoya 
Jordan, Anna Ramos, Lizette Ramos, 
Vanessa Ramos, Gabriel Ramos,
Thomas Myers, Lisa Myers, Thomas 
Myers, Jr., Linda Myers, Shawn Myers, 
and National Coalition for the Homeless

Himes

and-
Local counsel for Respondents 
Yvonne Jones, Odell A. Jones,
Melvin Dixon, Geri Bacon,Mary Williams, James Hodges 
and National Association for the 
Advancement of Colored People, Inc. 
White Plains/Greenburgh Branch

GROVER G. HANKINS, ESQ.
NAACP, Inc.4805 Mount Hope Drive Baltimore, Maryland 21215-3297 
(301) 486-9191



26

Attorney for Respondents 
Yvonne Jones, Odell A. Jones,
Melvin Dixon, Geri Bacon,
Mary Williams, James Hodges 
and National Association for the 
Advancement of Colored People, Inc. 
White Plains/Greenburgh Branch

Of Counsel:
Robert M. Hayes, Esq. 
Virginia G. Shubert, Esq. 
COALITION FOR THE HOMELESS 105 East 22nd Street 
New York, New York 10010 (212) 460-8110
Julius L. Chambers, Esq. 
John Charles Boger, Esq. 
Sherrilyn Ifill, Esq.
99 Hudson Street
New York, New York 10013
(212) 219-1900
Andrew M. Cuomo, Esq.
12 East 33rd Street 
6th Floor
New York, New York 10016 
(212) 779-3350