dissenting:
I respectfully dissent.
Like the majority I can see no reason why removed proceedings should not be governed by the principles of pleading embodied in the Federal Rules of Civil Procedure. Indeed, Rule 81(c) settles the question, rendering unnecessary judicial inquiry into the appropriateness of such an approach. Therefore I agree with today’s decision insofar as it reaffirms that in a proceeding properly removed to federal court a party may plead inconsistent claims or defenses to the extent permitted by Rules 8 and 11. Where I part ways with the majority is in answering the more difficult question lurking within the pleading question. That is, how are we to determine when in fact a proceeding has been properly removed.
The propriety of removal is a jurisdictional issue governed exclusively by the applicable removal statutes. While principles of pleading may prescribe how and when federal jurisdiction is to be invoked they cannot, of course, constrict or enlarge the scope of that jurisdiction. See generally F & L Drug Co. v. American Central Insurance Co., 200 F.Supp. 718 (D.Conn.1961). This distinction is implicitly recognized in the Federal Rules themselves. In the more common situation, where the plaintiff initiates the federal proceedings, the rules require that the complaint set forth a “plain statement of the grounds upon which the court’s jurisdiction depends . . . .” Fed.R.Civ.P. 8(a). In the removal situation, the defendant bears the burden of demonstrating entitlement to have the controversy heard in federal court. Nothing in the rules indicates that in either case the required jurisdictional statement, like a statement of claims or defenses, may contain contradictory factual averments. As I understand the relationship between pleading *591and jurisdiction, the party invoking federal jurisdiction may plead himself out of court by averring facts which, if true, would foreclose the exercise of that jurisdiction.
Looking at the issue as one of statutory entitlement to remove a case from state court rather than as a question of pleading, although I think the question is close I am persuaded that the district judge did not err in remanding the case to the state court whence it came. There is little caselaw and even less legislative history illuminating the rarely-invoked “refusal to act” clause of § 1443(2). In Bridgeport Education Association v. Zinner, 415 F.Supp. 715 (D.Conn.1976), Judge (then District Judge) Newman analyzed the sparse materials available in addressing the several issues of statutory interpretation presented by the removal dispute in that case. He determined: (1) that officials of a state or municipality, acting under color of state law, may invoke the “refusal to act” clause, (2) that the “refusal to act” clause permits removal when defendants make a colorable claim that they are being sued for refusing to act pursuant to a facially neutral state law that would have a racially discriminatory result if enforced, (3) that the federal law relied on by the removing defendants must be one providing for equal civil rights, and (4) that the conflict alleged to exist between the commands of state and federal law need not be apparent on the face of the statutes. But see Dodd v. Rue, 478 F.Supp. 975 (S.D.Ohio 1979). Because the Zinner defendants averred in their removal petition that they had refused to act in accordance with state law the tricky issue presented by the instant case was not considered. Nevertheless, the approach of the Zinner court provides a useful background for decision of this case.1
Zinner read the “refusal to act” clause as establishing “a subjective test, to be met by evidence of what in fact was the reason for the defendants’ failure to act.” Id. at 722. See also Armeno v. Bridgeport Civil Service Commission, 446 F.Supp. 553, 557 (D.Conn. 1978) (“The ‘refusal to act’ clause of § 1443(2) adequately assures a right of removal to . . .a public employer . when he has declined to observe state requirements that he believes are inconsistent with the obligations imposed upon him by a federal law protecting equal rights.”) Where, as here, defendants claim that they have not violated any state or local law, it is difficult for me to understand how they can simultaneously claim to have disregarded that law in the good faith belief that they were required to do so by a conflicting federal law. If defendants believe themselves to be in compliance with the requirements of state and local law, they hardly need to invoke federal law as justification for refusing to act differently.
Defendants’ denial of a state or local law violation not only renders questionable their claim that any refusal was based on deference to the requirements of federal law, it significantly alters the focus of the impending trial. As Judge Bums pointed out below, defendants’ posture necessitates a determination whether a state or local law has been violated and thus requires judicial construction of New Haven’s city charter and the various civil service rules and regulations applicable to its police department— “a function which is better performed by the state than the federal judiciary.” Memorandum of Decision at 5. Cf. Chance v. Board of Examiners, 561 F.2d 1079, 1088—92 (2d Cir. 1977).
Refusing to permit removal is therefore not a punishment for defendants’ refusal to confess their state or local law transgressions. It is merely a recognition that the removal statute most likely was intended to encompass only those situations in which the requirements of the federal civil rights law invoked need elucidation. In the instant case that question cannot be reached until the requirements of Connecticut law have been clarified. The Supreme Court has demonstrated a disposition, even in civil rights cases, to interpret statutory removal *592provisions quite narrowly in order to avoid unnecessary dislocation of the historical relationship between the state and federal courts in matters of particular state concern. Cf. Greenwood v. Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966). For this reason I view' it as wiser not to stretch § 1443(2) to include cases where defendants claim only that they have refused to act pursuant to plaintiffs’ erroneous perceptions of the requirements of state law. Such a dispute may well be settled without any reference to federal law, and the plaintiff should not be needlessly deprived of the opportunity to litigate his state law issues in state court.
The majority correctly states that a federal defendant seeking removal under a different removal statute, § 1442(a)(1), need not admit commission of the act alleged by the plaintiff. Willingham v. Morgan, 395 U.S. 402, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969). Since the federal government can only act through its officers, Justice Marshall explained in Willingham, § 1442(a)(1) removal is necessary to ensure that the federal government retains control over its own operations. Id. at 406, 89 S.Ct. at 1815. Whether the federal official committed the offense alleged is irrelevant to the potential for disruption of federal business, and therefore the right to remove is contingent only on whether the defendant is a federal officer acting within the scope of his authority. That is, under § 1442(a)(1), the status of the defendant is the jurisdictional touchstone. Nothing in Willingham suggests that a removing defendant might state conditionally in his petition that he is not a federal officer acting within the scope of his authority. Under § 1443(2), the jurisdictional touchstone is a colorable conflict between state and federal law leading to the removing defendant’s refusal to follow state law because of a good faith belief that to do so would violate federal law. By averring that they are not caught in such a predicament, defendants have demonstrated that they are not entitled to the exceptional protection afforded those who are. Contra, Buffalo Teachers Federation v. Board of Education, 477 F.Supp. 691 (W.D.N.Y.1979).
Remand is particularly appropriate in this case in light of defendants’ failure to assert any possible conflict between federal law and state law (even as interpreted by plaintiffs) as to a number of the violations alleged in the complaint. In their amended removal petition, defendants specified those acts that they had refused to perform on the ground of inconsistency with federal law:
a. To “assign weights” to the scores achieved by applicants on each phase of the examination in order to determine the overall score achieved by each candidate;
b. To use the written portion as other than a pass-fail component;
c. To use the performance evaluation as other than a pass-fail component; and
d. To conduct the oral examination in any manner other than that in which it was conducted.2
*593Plaintiffs and intervening plaintiffs, however, have alleged that defendants violated local law in ways not addressed by defendants. They charge, for example:
The Civil Service Board did not determine the tests that comprised said examination.
The examination was not conducted under the general direction of the Civil Service Board and by qualified examiners as determined by said Board.
* * * * * *
On information and belief, the procedure utilized in the said promotional examination was a new procedure adopted by the said Civil Service Board without prior public hearing and notice as required for any change in the rules by Section 190 of the Charter and Rule III of the Rules of the Civil Service Board.
As the district court noted, if violations are proven it may well be necessary to invalidate the examination on these grounds alone, in which case the question of any possible federal defense will be moot. The Connecticut Supreme Court has held that “[statutory provisions regulating appointments under civil service acts are mandatory and must be complied with strictly. They may not be waived by a civil service commission and substantial compliance is insufficient.” Walker v. Jankura, 162 Conn. 482, 489, 294 A.2d 536, 540 (1972) (vacating promotion list based on examination held in violation of applicable rules). Simply because federal law prohibits the ■ use of discriminatory employment examinations is a wholly insufficient reason to litigate only in a federal court such questions as whether the Civil Service Board performed its duty to oversee the examination process. Cf. Armeno, supra, 446 F.Supp. at 558.
While there is some reason then to interpret the statute narrowly so as to exclude removal petitions which deny any refusal to act in accordance with state or local law, I can see no compelling reasons to justify a broader interpretation. “The presence of a federal defense does not normally create federal question jurisdiction . . . .” Zinner, supra, 415 F.Supp. at 723 n. 7, citing Louisville & Nashville R. R. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). In areas of concurrent federal-state jurisdiction vindication of a defendant’s federal rights is generally left to the state court properly selected by the plaintiff except in those rare instances where Congress has determined that the federal interest in having the case tried in federal court outweighs the plaintiff’s traditional interest in selecting the forum. Cf. Greenwood v. Peacock, supra, 384 U.S. at 828, 86 S.Ct. at 1812. “Where Congress has seen fit to grant concurrent jurisdiction to the state courts, they are competent to dispose of questions involving federal law.” Victorias Milling Co. v. Hugo Neu Corporation, 196 F.Supp. 64, 70 (S.D.N.Y.1961).
Given the majority’s disposition of the remand issue, it is unnecessary for us to speculate as to whether, had the case been remanded to state court, it would have been possible for defendants to preserve the federal issue while litigating the state issue. I note only that I would not assume, as does the majority, that such an option would be unavailable. Cf. England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964) (discussion of preservation of federal issue during litigation in state court).
I would affirm.
. Inasmuch as defendants have failed to demonstrate entitlement to remove even under the broad interpretation given to § 1443(2) in Zinner, I express no opinion on the precise holdings of that decision — a decision which the majority adopts today.
. Because in my view by taking the position that they have fully complied with state and local law defendants have failed to demonstrate entitlement to remove, it is unnecessary to examine their fail-back claim, that is, that if interpreted as plaintiffs suggest state law would conflict with Title VII. I question however the colorability of defendants’ claim of conflict. Although plaintiffs have attacked the conduct of the oral examination in several particulars— alleging for example that the questions were not uniform, the panel was not impartial, the scoring was not proper, and the content was not objective — defendants reply only that to have conducted the oral examination in any other manner would have violated federal law. Title VII requires only that employment examinations be non-discriminatory. The suggestion that there is only one non-discriminatory manner in which to conduct a non-discriminatory oral examination is inherently improbable.
Like all other employers, cities must obey the commands of both state and federal law; they are excused from compliance with state or local law only when such compliance would necessarily conflict with the requirements of federal law. Cf. United States v. City of Chicago, 549 F.2d 415, 438 (7th Cir.), cert. denied, 434 U.S. 875, 98 S.Ct. 225, 54 L.Ed.2d 155 (1977). The fact that their previous practices may have met the requirements of state law while violating federal law does not mean that in the future the former may be disregarded. *593Their duty is to develop a system that meets the requirements of both if such a result is possible. See generally Chance v. Board of Examiners, 561 F.2d 1079 (2d Cir. 1977).