FRIENDLY, Circuit Judge.
Appellant brought this action eight years ago in the Supreme Court of New York, Queens County, to recover damages for false arrest and imprisonment on a mail fraud charge which has already produced many reported
Plaintiff promptly moved to remand on numerous grounds, including the failure of all defendants to join in the petition. Judge Byers denied the motion in an opinion which did not discuss that ground, Bradford v. Harding, D.C.E.D. N.Y.1952, 108 F.Supp. 338. In March, 1959, defendants moved for summary judgment; plaintiff cross-moved to remand on the ground stated. Chief Judge Bruchhausen granted defendants' motion and denied plaintiff's, D.C.E.D.N.Y.1959, 180 F.Supp. 855. Disclaiming any desire for review of the District Court's ruling on the merits, a disclaimer wise in view of Yaselli v. Goff, 2 Cir., 1926, 12 F.2d 396, 56 A.L.R. 1239, affirmed 1927, 275 U.S. 503, 48 S.Ct. 155, 72 L.Ed. 395, and many other cases, plaintiff presses the point that the case should have been remanded because of failure of all the federal officers who had been served to join in the petition for removal.
Plaintiff is not precluded from making this claim by laches, as the New York City detective contends on the basis of Fienup v. Kleinman, 8 Cir., 1925, 5 F.2d 137, and McKay v. Rogers, 10 Cir., 1936, 82 F.2d 795. Here plaintiff promptly moved for remand in part on this very ground. Since the denial of his motion was interlocutory and unappeasable, Davenport v. Procter & Gamble Mfg. Co., 2 Cir., 1957, 241 F.2d 511, 63 A.L.R.2d 1350, he was obliged to litigate in the federal court until final judgment, and thus cannot be charged with laches for doing so. On appeal from the final judgment, he may challenge the denial of remand, see 6 Moore, Federal Practice (1953 ed.), p. 55.
Plaintiff bases his appeal on the long line of decisions that where removal is sought to be effected under the provisions of 28 U.S.C. § 1441(a), and its predecessors, whereby "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants * * *," all the defendants must join in seeking removal. This is so whether the ground of removal is diversity, Fletcher v. Hamlet, 1886, 116 U.S. 408, 6 S.Ct. 426, 29 L.Ed. 679, or the existence of a federal question, Chicago, Rock Island & Pacific Ry. Co. v. Martin, 1900, 178 U.S. 245, 20 S.Ct. 854, 44 L.Ed. 1055.
Section 1442 of Title 28 providing for removal of a civil action or a criminal prosecution against an officer of the United States uses somewhat different language. Whereas § 1441 provides for removal "by the defendant or the defendants," § 1442 uses the more ambiguous "by them."
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. Moreover, the policy of the section would be frustrated if a plaintiff or a prosecutor, by joining non-federal defendants with no desire to remove, could retain the suit in a tribunal that might "administer not only the laws of the State, but equally Federal law, in such a manner as to paralyze the operations of the government." 100 U.S. at page 263.
These considerations of policy also require a construction in favor of removal where, as here, some persons entitled to join in the removal petition did not.
"§ 1442. Federal officers sued or prosecuted
"(a) 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:
"(1) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.
* * * * *
"(3) Any officer of the courts of the United States, for any Act under color of office or in the performance of his duties; * * *"