(dissenting).
■ Contrary to the view expressed by my brethren in the majority opinion, I am convinced that Judge Chandler has had a full and fair hearing before Judge Austin on plaintiff’s original motion to remand to the state court. Judge Chandler’s right to remove to federal court under 28 U.S.C. § 1442 on the basis of judicial immunity was raised by Judge Chandler in his petition to remove and was fully considered by Judge Austin. An evidentiary hearing was held, after which the case was remanded to the state court. The remand order, dated May 24, 1966, filed June 3, 1966, in pertinent part reads:
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Defendant’s acts complained of in the Plaintiff’s Original Petition were not done in the performance of his official duties as a Judge of the District Court of the Western District of Oklahoma, that they were not acts done under color of judicial office. There is no other Federal issue involved therefore the Plaintiff’s motion to re*416mand is granted and the case is remanded to the State Court from whence it came.
I agree with the majority holding that the second paragraph of 28 U.S.C. § 1446(b) governs the right to file the second petition for removal here involved, and that said statute applies only if both an amended pleading or paper is filed and a ground for asserting removability is thereby disclosed for the first time.
My departure from the majority arises with respect to applying such law to the facts of this case as disclosed by the record.
The amendment which is described in some detail in the majority opinion was filed during the course of the state trial on the merits. Such amendment made no material change in plaintiff’s cause of action. The basis of plaintiff’s action before and after the amendment was that Judge Chandler on August 14, 1965, delivered to Mr. Clabes, Managing Editor of the Oklahoma Journal, a document charging that plaintiff was the mastermind of bribes alleged to have been paid to the Supreme Court of Oklahoma. Attached as an exhibit was the blue brief which was subsequently filed with the Tenth Circuit on August 19, 1965, in connection with Chandler I. The pages of the tan brief (preliminary draft) which were substituted by the amendment differ in no material respect from those of the blue brief.
More importantly, the amendment did not for the first time assert a ground for removability which had not previously been asserted. The defense of judicial immunity was raised and considered in the remand proceedings before Judge Austin and such defense was raised by the defendant in the state court proceeding by his answer filed in July 1966. The second petition for removal was filed February 26, 1967, several days after the completion of the state court trial and the jury verdict in the state court against Judge Chandler.
I agree that the well-established doctrine of judicial immunity should be liberally construed. Such is the holding in Willingham v. Morgan, 395 U.S. 402, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969). I find nothing in Judge Austin’s remand order which reflects the judicial immunity issue was not so considered. In any event Judge Austin’s remand order is not reviewable by reason of 28 U.S.C. § 1447(d). Chandler v. O’Bryan, 445 F.2d 1045, 1056 (10th Cir. 1971).
I agree that this prolonged litigation has placed a heavy burden on all parties. I am not shocked by the result reached by the majority. However, I feel no legal basis exists for permitting the second removal petition under § 1446(b) or otherwise. The trial court lacked jurisdiction to enter the judgment appealed from. I would reverse the judgment and remand to the state court.