The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
ORDER GRANTING THE UNITED STATES' MOTION TO DISMISS ORDER TO SHOW CAUSE AND QUASH SUBPOENA AGAINST RUSSELL COTTRELL, M.D. AND REMANDING ACTION TO STATE COURT*fn1
On December 18, 2009, the United States filed a motion on behalf of Doctor Russell Cottrell, in which it seeks an order quashing the trial subpoena and dismissing the order to show cause for failure to appear issued to Dr. Cottrell by the Butte County Superior Court. (Docket No. 5.) The latter order required that Dr. Cottrell appear before the state court to explain why he should not be sanctioned and/or held in contempt of court for his failure to obey the trial subpoena. The United States argues the state court lacked jurisdiction to enforce the subpoena and order since Dr. Cottrell is a federal employee who failed to appear at trial as a result of having been instructed not to appear, and that instruction was authorized by a Department of Veterans Affairs regulation. The subpoena and order arose in the context of a state court probate proceeding, In re the Pat Dossie Trust, case number PR-38990, which the United States removed to federal court. (Welch Decl. ¶ 2, Ex. E.) Patrick Dossie, a party in the underlying probate matter, opposes the current motion. For the reasons stated below, the United States' motion is GRANTED and the remainder of this action is REMANDED to the Butte County Superior Court from which it was removed.
Dr. Cottrell is a psychiatrist employed by the United States Department of Veteran Affairs (the "VA") at the VA Clinic in Chico, California. (Welch Decl. ¶ 1.) Attorney David Rush, counsel for Carolyn Roche, who is one of the parties in the probate action, notified Dr. Cottrell in a letter dated October 8, 2009, that he had been designated as an expert witness in the Dossie case, which was set for a two day trial commencing on November 23, 2009. (Id. ¶ 2, Ex. A.) Dr. Cottrell treated Pat Dossie, the decedent whose estate is the subject of the Dossie probate litigation. (Welch Decl., Ex. B.) Mr. Rush's letter suggests he sought Dr. Cottrell's testimony on the decedent's "mental capacity to know what he was doing" when he made an amendment to his trust. (Welch Decl., Ex. A.)
Dr. Cottrell responded to Mr. Rush's October 8 letter through VA Staff Attorney Colleen Welch. (Id. ¶¶ 1,3, Ex. B.) Ms. Welch explained to Mr. Rush, in a letter dated October 14, 2009, that "[u]nder the VA's Touhy Regulations found at 38 C.F.R. 14.800 et seq.," Doctor Cottrell could not serve as an expert witness in the Dossie case. (Id. ¶ 3, Ex. B.) Following receipt of Ms. Welch's letter, Mr. Rush phoned Ms. Welch and explained the "circumstances of the case and why he wanted Dr. Cottrell as a witness." (Id. ¶ 4.) Ms. Welch and Mr. Rush then agreed that Dr. Cottrell could be deposed but he would not appear at the trial. (Id.)
However, on November 12, 2009, Mr. Rush faxed Ms. Welch a civil subpoena dated November 10, 2009 (the "Subpoena"), issued to Dr. Cottrell, and requiring his personal appearance on November 23, 2009 at the trial of the Dossie case. (Id. ¶ 5, Ex. C.) Ms. Welch responded to the Subpoena on behalf of Dr. Cottrell in a letter dated November 13, 2009, "informing Mr. Rush that the VA had weighed the factors in 38 C.F.R. § 14.804 regarding when VA personnel will be authorized to testify, and that it had determined that it would not produce Dr. Cottrell for testimony." (Id. ¶ 6, Ex. D.) Ms. Welch instructed Dr. Cottrell not to appear at the trial, and Dr. Cottrell did not appear. (Id. ¶ 6.)
On December 2, 2009, the Butte County Superior Court issued an "Order to Show Cause" (the "Order") to Dr. Cottrell, ordering that he appear at a hearing scheduled for December 22, 2009 and "show cause re: failure to appear; sanctions and/or contempt of court." (Id. ¶ 7, Ex. E.) On December 11, 2009, the United States filed a notice of removal on behalf of Dr. Cottrell in which it removed the Dossie case to this federal district court under 28 U.S.C. § 1442(a)(1). (Notice of Removal ¶ 9.)
A district court has "a duty to establish subject matter jurisdiction over [a] removed action sua sponte, whether the parties raise the issue or not." United Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004). The United States argues removal is proper under "28 U.S.C. § 1442(a)(1) because Dr. Cottrell is a physician employed by the United States Department of Veterans Affairs..., an agency of the United States, who was acting within his official capacity and/or under the color of duly enacted and promulgated federal law at all times relevant..., and is now the subject of an order issued by a state court in a civil action." (Notice of Removal ¶ 9.) The United States' contends Dr. Cottrell's refusal to appear in the state probate proceeding resulted from his compliance with Ms. Welch's directive, which was issued under 38 C.F.R. 14.808.*fn2
The United States, however, has not demonstrated that 28 U.S.C. § 1442(a)(1)("Section 1442(a)(1)") authorizes this court to exercise removal jurisdiction over the entire state probate action.*fn3
"[T]he probate exception reserves [exclusive jurisdiction] to state probate courts the probate of a will and the administration of a decedent's estate...." Marshall v. Marshall, 547 U.S. 293, 311-12 (2006); see also Bedo v. McGuire, 767 F.2d 305, 306 (6th Cir. 1985)(stating that "federal courts have no probate jurisdiction."). Nonetheless, removal of the ancillary proceeding in which the Butte County Superior Court seeks to compel Dr. Cottrell to appear was proper under Section 1442(a)(1). See Swett v. Schenk, 792 F.2d 1447, 1450 (9th Cir. 1986) (noting that a contempt action against a federal officer, while ancillary to the underlying state court proceeding, is distinct and independently removable). "Although no contempt order was entered in the state court[,]... [Dr. Cottrell was] ordered to [appear], and it is clear that [his] failure to comply with the state court's order could result in contempt sanctions; this is sufficient to make [Dr. Cottrell] [a] defendant in the ancillary [contempt proceeding]...." Dent v. Packerland Packing Co., Inc., 144 F.R.D. 675, 678 (D. Neb. 1992)(quotations and citations omitted); see also F.B.I v. Superior Court, 507 F. Supp. 2d 1082, 1089 (N.D. Cal. 2007)(finding removal of ancillary contempt proceeding against federal employee proper under Section 1442(a)(1)). Therefore, while removal jurisdiction does not extend to the entire state probate action, it does confer jurisdiction over the ancillary dispute involving Dr. Cottrell and the United States' motion.
B. The State Court's Jurisdiction to Enforce the Subpoena and Order
Patrick Dossie opposes the United States' motion, arguing the VA failed to properly apply the factors under 28 C.F.R. § 14.804 in determining whether Dr. Cottrell would be permitted to testify at the Dossie trial. However, "[a] consideration on the merits" as to whether the VA validly withheld Dr. Cottrell's testimony, "can play no part in [this] decision." In re Elko County Grand Jury, 109 F.3d 554, 556 (9th Cir. 1997). "The appropriate means for challenging the [VA's] decision [to ...