equal to the right of the federal government to exert exclusive and supreme power in the field that by virtue of the Constitution belongs to it. The removal statute under consideration is to be construed with highest regard for such equality. * * *.'
The statute to which the Court spoke was the 1916 precursor of § 1442, the history of which has already been recited.
I see no evidence that Congress desired that removal be made available to all federal employees whenever they are sued or prosecuted in a state court for an act done in the performance of their duties. Indeed, in the Symes case, supra, the Court said:
'* * * Federal officers and employees are not, merely because they are such, granted immunity from prosecution in state courts for crimes against state law. Congress is not to be deemed to have intended that jurisdiction to try persons accused of violating the laws of a state should be wrested from its courts in the absence of a full disclosure of the facts constituting the grounds on which they claim protection under section 33.' State of Colorado v. Symes, 286 U.S. at page 518, 52 S. Ct. at page 637.
True the statute has been expanded since the time of the Symes case. But as was said in State of Oklahoma v. Willingham, supra (143 F.Supp. 447), 'Revised Section 1442 made no change in the theory or basis for removal. It merely extended its application to 'all officers (and employees) of the United States or any agency thereof'.' The fact that Symes emanated from a criminal proceeding and that Willingham was a criminal case, does not in itself render their teaching any less pertinent for § 1442 applies to both civil actions and criminal prosecutions, as did the former statute, 28 U.S.C. § 76.
There is no official connection between the act complained of and Davidson's official duties. The mere fact that he was driving a mail truck does not present any federal question or defense under federal law.
As Judge Rice said in State of Oklahoma v. Willingham, supra, 143 F.Supp. at page 448:
'* * * There is no official connection between the acts complained of and the official duties of the mail carrier. The mere fact that the defendant was on duty and delivering mail along his route does not present any federal question or defense under federal law. The efficient operation and administration of the work of the Post Office Department does not require a carrier, while delivering mail to drive his car from a stopped position into the path of an approaching automobile. When he is charged with doing so, his defense is under state law and is not different from that of any other citizen.'
It may well be commendable for the United States Attorney to give legal representation to a faithful government employee in a case of this kind. But it does not follow that the case should on the basis of that employment alone be removed from the state court and the original plaintiff deprived thereby of his choice of a forum.
That Davidson's answer raises a defense of release under 28 U.S.C. § 2672 does not militate toward denying the motion for I find no federal question which may not be passed upon by the state court.
It should be noted that the United States Government has not been made a party to this action.
The motion to remand will be granted. The remaining motions are accordingly not reached. An order should be submitted.