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November 18, 1971

HOUSING AUTHORITY OF the CITY OF NEWARK, a corporation of the State of New Jersey, Petitioner,
Toby HENRY et al., Defendants

Lacey, District Judge.

The opinion of the court was delivered by: LACEY


LACEY, District Judge:

 This action was commenced in the Superior Court of New Jersey and was removed to this Court by the defendants, acting pursuant to 28 U.S.C. § 1443(1), which provides as follows:


Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:


(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof; * * *.

 The plaintiff then moved to remand under 28 U.S.C. § 1447(c): *fn1"


(c) If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just costs. A certified copy of the order of remand shall be mailed by its clerk to the clerk of the State court. The State court may thereupon proceed with such case.

 The "right" which defendants' Petition for Removal asserts is "denied" or "cannot [be] [enforced] in the courts" of the State of New Jersey is claimed under 42 U.S.C. § 1981: *fn2"


§ 1981. Equal rights under the law


All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

 The § 1981 "right" is generated by the following facts. The plaintiff is a Housing Authority organized under N.J.S. 55:14A-1, et seq. It currently operates various housing projects in the City of Newark. The defendants are representatives of an association of tenants in certain of these projects. In April, 1970, numerous tenants began a so-called rent strike, pursuant to which they ceased to pay any rent. This step was taken to exercise economic leverage against the plaintiff to the end that recognition and suitable response would be forthcoming from the plaintiff of and to the tenants' demands for better living conditions in and about the concerned housing projects.

 Negotiations ensued but fell short of substantial accomplishment. The plaintiff then commenced a state court action seeking, among other relief, appointment of a receiver to hold past and future rents pending resolution of the underlying substantive differences. At the same time, the plaintiff obtained from the New Jersey Superior Court a temporary restraining order which, the defendants' Removal Petition states, compelled delivery to a receiver of all rents theretofore collected by the tenants' representatives. The fact is, however, that in subsequent proceedings, by agreement of the parties, it was provided otherwise. There never has been a turnover of rents to a state court receiver, and the defendants have never presented to a state court their objections to the appointment of a receiver. In any event, shortly after commencement of the state action, defendants' Petition was filed. It articulates defendants' § 1981 "right" to engage in a rent strike and to collect but withhold rent money without disclosing its whereabouts. The state court appointment of a receiver, it is argued, "jeopardizes the ability of the tenants to wield any meaningful leverage" in achieving their ends; and it has the further effect, it is contended, "to create a firm prediction that these black tenants are being, and will be, prevented, under color of state law, from leasing or contracting for habitable conditions on the same basis as whites in this society. * * *"

 The defendants have the burden of proving "that a federal court, a court of limited jurisdiction, has subject matter jurisdiction, and there is a presumption that a federal court lacks jurisdiction in a particular case until it has been demonstrated that subject matter jurisdiction exists. * * *" [Footnote omitted] Morgan v. Melchar, 442 F.2d 1082, 1085 (3 Cir. 1971).

 Thus, the generous interpretation accorded a complaint on a motion to dismiss for failure to state a claim [ Norwalk Core v. Norwalk Redevelopment Agency, 395 F.2d 920, 925-926 (2 Cir. 1968)] has no application to construction of a Removal Petition. Moreover, as has been stated (F.N. 1, supra), this Court can -- indeed, must -- dismiss cases for lack of subject matter jurisdiction, irrespective of the will of the parties or the practical considerations militating against dismissal. Morgan v. Melchar, supra, 442 F.2d at 1085; Berkowitz v. Philadelphia Chewing Gum Corp., 303 F.2d 585 (3 Cir. 1962); and see Baker v. Riss & Co., 444 F.2d 257, 259 (8 Cir. 1971):


* * * Neither party has challenged the jurisdiction of the trial court or of this court. On the contrary, both parties assert jurisdiction exists. Subject matter jurisdiction cannot be conferred by consent. Federal courts have only such jurisdiction as is conferred upon them by Congress. It is our duty to satisfy ourselves as to the jurisdiction of the trial court and our own jurisdiction, whether or not the jurisdictional issue is raised. * * *

 We are urged to consider, in examining jurisdiction, that critical questions, of overriding significance, are substantively involved. We are told that the instant matter, if allowed to remain here, can be then consolidated with another controversy, resulting, it is said, in a greater likelihood of peaceful resolution of a frustratingly bitter confrontation. In another context, all this would merit and mandate reflection and consideration. At this procedural stage it is, quite simply, extraneous matter. This Court's jurisdiction is defined by Congress. Ex parte McCardle, 74 U.S. (7 Wall.) 506, 19 L. Ed. 264 (1868); Cary v. Curtis, 44 U.S. (3 How.) 236, 11 L. Ed. 576 (1845); Morgan v. Melchar, supra, 442 F.2d at 1085; C. Wright, Federal Courts, § 10. Also, "Jurisdictional questions should be determined as early as possible in a litigation. Underwood v. Maloney, 256 F.2d 334, 340 (3 Cir.), cert. denied, 358 U.S. 864, 79 S. Ct. 93, 3 L. Ed. 2d 97 (1958)." Berkowitz v. Philadelphia Chewing Gum Corp., supra, 303 F.2d at 588. We therefore must resist the temptation of the practical and address the threshold question of whether by law we have the power to entertain this case.

 At the outset, a non-issue should be dispelled. We do not deal with that doctrinal dilemma of federal abstention versus federal primacy, a dilemma the horns of which, in this Circuit, are tagged, shaped and pointed by University Day Care Center, Inc. v. Temple University, 442 F.2d 1116 (3 Cir. 1971), and Lewis v. Kugler, 446 F.2d 1343 (3 Cir. 1971), respectively. *fn3"

  The abstention cases, to a degree, illuminate the instant jurisdictional issue, underscoring, as they do, that we live under a federal system, which is largely dependent for its proper functioning upon the states' judicial branch. *fn4" See Reetz v. Bozanich, 397 U.S. 82, 90 S. Ct. 788, 25 L. Ed. 2d 68 (1970). Cf. Atlantic C.L.R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 90 S. Ct. 1739, 26 L. Ed. 2d 234 (1970). The issue is thus presented: Under all the circumstances, may this matter remain here, or shall it be returned to the state court? Put in less abstract terms, does the underlying but not frequently articulated generating rationale of § 1443(1), a distrust (not shared by this Court) of the States in the civil rights area, direct removal here; or should there be applied the doctrine of restraint, that § 1443(1) is a removal statute and hence to be strictly construed against the right of removal, thus honoring the corollary concept of deference to our federalism? *fn5"

 The Law

 Title 28 U.S.C. § 1443(1) permits removal to the federal district court in both civil and criminal cases commenced in state court against one who "is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights * * *."

 As was stated by Chief Judge Seitz of this Circuit in Hill v. Commonwealth of Pennsylvania, 439 F.2d 1016, at 1019 (3 Cir. 1971), cert. denied, Hill v. Pennsylvania, 404 U.S. 985, 92 S. Ct. 445, 30 L. Ed. 2d 370 (1971):


* * * To justify removal under this section, petitioners must demonstrate that (1) they rely upon a specific civil right stated in terms of racial equality, and (2) a clear prediction can be made that the right relied upon will be denied or not be enforceable in the state court. Georgia v. Rachel, 384 U.S. 780, 86 S. Ct. 1783, 16 L. Ed. 2d 925 (1966); City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 86 S. Ct. 1800, 16 L. Ed. 2d 944 (1966).

 Defendants' Petition clearly meets the first requirement by invoking 42 U.S.C. § 1981. *fn6" Georgia v. Rachel, 384 U.S. 780, 86 S. Ct. 1783, 16 L. Ed. 2d 925 (1966); City of Greenwood v. Peacock, 384 U.S. 808, 86 S. Ct. 1800, 16 L. Ed. 2d 944 (1966); Hill v. Commonwealth of Pennsylvania, supra ; Young v. I.T. & T. Co., 438 F.2d 757 (3 Cir. 1971); Hackett v. McGuire Bros. Inc., 445 F.2d 442 (3 Cir. 1971).

 Defendants' briefs and oral argument advance, in addition to § 1981, other "[laws] providing for * * * equal civil rights" to sustain their removal: 42 U.S.C. § 1982, 42 U.S.C. § 2000d and 42 U.S.C. §§ 3604 and 3617, the latter two sections being a part of the Fair Housing Title (Title VIII) of the Civil Rights Act of 1968, and which in pertinent part read as follows: *fn7"


§ 3604: * * * [It] shall be unlawful (b) To discriminate against any person in the terms, conditions, or privileges of * * * rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, or national origin.


§ 3617: It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed, or on account of his having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by section * * * 3604 * * * of this title. * * *


Dealing first with § 1981, and turning again to Hill, we are compelled by reliance thereon to reject the contention in defendants' Petition that they are, under the circumstances of this case, "denied" -- or "cannot enforce" -- a "right under * * * [§ 1981] in the courts" of the State of New Jersey. *fn8"


Since an analysis of Hill necessarily requires examination of its underpinnings -- Rachel and Peacock -- we shall proceed first to elucidate the ruling principles and directive forces to be drawn from these landmark decisions, both decided on June 20, 1966.


Peacock serves our purpose well in this connection: in addition to its own ruling, it examines and distinguishes Rachel. Thus in Peacock the Supreme Court first reviewed its holding in Rachel: that it had there permitted § 1443(1) removal where a state court prosecution "stems exclusively from the petitioners' peaceful exercise of their right to equal accommodation in establishments covered by the Civil Rights Act of 1964 * * * 42 U.S.C. § 2000a et seq. (1964 ed.). * * *" 384 U.S. at 824, 86 S. Ct. at 1811.


Peacock then qualified 42 U.S.C. § 1981 as providing the "equal civil rights" required by § 1443(1), but thereafter distinguished the case before it from Rachel, as follows (384 U.S. at 826-827, 86 S. Ct. at 1812):


* * * The present case differs from Rachel in two significant respects. First, no federal law confers an absolute right on private citizens -- on civil rights advocates, on Negroes, or on anybody else -- to obstruct a public street, to contribute to the delinquency of a minor, to drive an automobile without a license, or to bite a policeman. Second, no federal law confers immunity from state prosecution on such charges. [Footnote omitted]


Peacock then announced the fundamental principles of a § 1443 removal (384 U.S. at 827-828, 86 S. Ct. at 1812):


* * * It is not enough to support removal under § 1443(1) to allege or show that the defendant's federal equal civil rights have been illegally and corruptly denied by state administrative officials in advance of trial, that the charges against the defendant are false, or that the defendant is unable to obtain a fair trial in a particular state court. The motives of the officers bringing the charges may be corrupt, but that does not show that the state trial court will find the defendant guilty if he is innocent, or that in any other manner the defendant will be "denied or cannot enforce in the courts" of the State any right under a federal law providing for equal civil rights. The civil rights removal statute does not require and does not permit the judges of the federal courts to put their brethren of the state judiciary on trial. Under § 1443(1), the vindication of the defendant's federal rights is left to the state courts except in the rare situations where it can be clearly predicted by reason of the operation of a pervasive and explicit state or federal law that those rights will inevitably be denied by the very act of bringing the defendant to trial in the state court. * * * [Emphasis in the original].


Accordingly, notwithstanding the petitioners' allegations in Peacock of what the Supreme Court called "an outrageous denial of their federal rights," removal was denied.


Now considering Hill, there the defendant-petitioners were charged in state court with assault and battery, unlawful assembly, and inciting to riot. They alleged in their removal petitions that their arrests and the charges against them were based upon conduct supportive of an attempt by the Black Construction Coalition to secure equal employment opportunities in the City of Pittsburgh; that this was conduct having as its purpose the securing of federally protected equal civil rights; and that Pennsylvania was denying them these rights -- and rendering them unenforceable -- by the prosecutions. They then argued that "since they are immune from prosecution, any proceeding in the state court will necessarily deny them their rights protected by this immunity. * * *" (439 F.2d at 1019). Chief Judge Seitz, in ordering remand, first analyzed Rachel and Peacock (439 F.2d at 1021):


The statutes relied upon in Rachel necessarily displaced any state laws which would proscribe the act of remaining in public accommodations when asked to leave on account of race by prohibiting attempted punishment for this act. However, when statutes, such as those relied upon in Peacock, grant one a right not to be intimidated for efforts to accomplish a particular goal or while asserting a specific right, we cannot ascribe to Congress an intent to displace state laws which regulate one's conduct while attempting to exercise the right unless, of course, the federal right permits specific acts which are proscribed by state law, or the state law, in effect, forecloses a reasonable possibility of engaging in acts necessary to assert the federal right. Without a displacement of state law we do not have a situation in which a federal right is substituted for a state crime; therefore the mere pendency of a prosecution based on state criminal laws does not provide the necessary basis to firmly predict that a federal right would be denied in state court.


As Hill points out, Peacock lacked "the distinguishing feature of Rachel, the statutory substitution of a right for a crime." Put another way, the federal law relied upon for § 1443 removal "did not * * * displace the state laws under which the petitioners were charged." (439 F.2d at 1021). Applying these guideposts to the case before it, Hill held that the federal statute [ 18 U.S.C. § 245(b)] relied upon by the defendant-petitioners "was not intended to displace the ordered functioning of state legal processes, whatever the motivation of those instituting the prosecution. * * *" *fn9"

  The persistent and pervasive theme of Rachel, Peacock and Hill is plain: § 1443(1) removal requires that there be two clearly antithetical policies represented on the one hand by the "equal civil rights" federal statute and, on the other, by the state statute being applied (or, as in Rachel, by the state proceeding complained of). It must appear that what is being done, or attempted at the state level, is forbidden or prohibited by any reasonable construction of the federal statute relied upon.

 Thus, in Rachel, in reliance on a specific right, expressly granted, the petitioners were in a place of public accommodation. Absent otherwise unlawful conduct (e.g., destruction of property, fighting, etc.), they could not be prosecuted for being in that place of public accommodation.

 In Peacock there was, under the statute relied upon, a general right to aid in voter registration. There was not, however, a specific right granted to use any activity to accomplish that end.

 Finally, under Rachel and Peacock, as analyzed by Hill, the test in determining a § 1443(1) removal is whether the specific activity pursued by a petitioner was specifically authorized by Congress, in order to accomplish the particular civil right conferred by the "equal civil rights" statute which a petitioner relies upon.

 To thus state the question is to render inevitable the ruling that the defendants' Petition, in relying upon § 1981, fails to sustain removal: § 1981 does not authorize a rent strike; indeed, landlord-tenant relationships are not expressly covered in that statute.

 Independently of § 1981, in their supplemental brief and on oral argument, defendants argue that §§ 3604(b) and 3617 are also "[laws] providing for * * * equal civil rights" which sustain removal under § 1443(1). Assuming but not deciding that the Removal Petition may be thus enlarged, it is clear that these provisions are laws providing "equal civil rights." People of State of New York v. Davis, 411 F.2d 750, 753 (2 Cir. 1969), cert. denied 396 U.S. 856, 90 S. Ct. 119, 24 L. Ed. 2d 105 (1969). *fn10" The former statute, § 3604(b), makes it unlawful to discriminate in the sale or rental of housing covered by the statute "because of race, color, religion, or national origin." The latter statute, § 3617, makes it unlawful "to coerce, intimidate, threaten, or interfere with any person in the exercise of enjoyment of or on account of his having exercised or enjoyed" any right granted by § 3604. Defendants argue that their rent strike is a right protected by § 3604(b) and that the institution of the action by N.H.A. in the state courts was racially motivated; was an act within § 3617; interfered with the rent strike; and was a coercive activity which would result in breaking the rent strike.

 They further contend that, following institution of the action, the application by the plaintiff below for appointment of a receiver, which was granted, effectively operated to "break the back" of the rent strike.

 Examining these contentions, under Hill the test must be whether the specific activity in question was authorized by Congress to promote the "equal civil rights" of § 3604 and did such act of Congress preclude state control of the activity? Rent strikes are not sanctioned by 42 U.S.C. § 3604, and the general nature and broad scope of the statute cannot be said to preclude all state regulation of the landlord-tenant relationship. Moreover, even assuming that a rent strike had been specifically permitted by Congress, the appointment of a receiver would hardly constitute coercion, intimidation, a threat to, or interference with, the rent strike. The receiver was to collect and hold, under the state court's direction, the withheld rents until the settlement of the underlying dispute, but was not to turn the funds over to the plaintiff. The relevance of these considerations is undeniable and their cumulative effect unanswerable. The case therefore, must be remanded, and, as in Hill, the application for a hearing on the petition's allegations is denied.

 The defendants' subtly ingenious effort fails to distinguish Hill from the case at bar. That Hill was a criminal and not, as this, a civil action, is of no moment; for § 1443(1) draws no distinction between these two categories in establishing removal criteria. *fn11"

 Accordingly, the motion to remand is granted. An appropriate order should be promptly submitted. *fn12"

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