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Wendy Joy

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Color Climax 109

[2] 28 U.S.C. 1442 provides that "[a] civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending" (emphasis supplied). The persons enumerated include officers of the United States, officers of federal agencies, and persons acting under color of federal office. The instant action was not brought "against" any of the persons enumerated in 1442 and even if it had been, defendants herein lack standing to remove under this section. "When an action of the sort specified in 1442 is brought against a federal officer and others, even the most literal reading would permit the federal officer alone to remove, as was held in Jones v. Elliott, D.C.E.D.Va.1950, 94 F. Supp. 567. For `by them' means `by any of the following persons' and the defendants who are not federal officers are not such persons." Bradford v. Harding, 284 F.2d 307, 310 (2 Cir. 1960). Although 28 U.S.C. 1442 was one of the grounds set forth in Avondale and Ogden's removal petition, the argument that 1442 has application here was never subsequently briefed and appears, quite wisely, to have been abandoned.

Color Climax 109


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