dissenting:
In this case the United States has successfully removed to federal court a state *1004criminal prosecution against a member of its armed forces based on the latter’s conduct in the course of performance of his military duties, and has in federal court then successfully proved in adversarial evi-dentiary proceedings the defendant’s entitlement to the federal defense of official immunity under the Supremacy Clause. Without addressing the merits of the immunity defense, the majority now reverses that decision and remands the prosecution to state court, holding that removal under 28 U.S.C. § 1442(a)(1) was not justified in the first instance, hence that federal jurisdiction was irretrievably lacking from the outset, because the removal petition did not sufficiently aver the federal defense that was later proved in federal district court.
I think this is wrong legally. Its effect is to deprive a federal agent of a factually and legally sound determination by a federal court of his entitlement to official immunity in a situation for which that defense was classically designed. I respectfully dissent.
I
As indicated, the majority does not reach the merits of the immunity defense, instead reversing and remanding to state court for lack of federal subject matter jurisdiction. I therefore address first the jurisdictional issue.
The majority finds jurisdiction lacking solely because Ivory’s petition for removal under 28 U.S.C. § 1442(a)(1) failed on its face to comport with the requirements of Mesa v. California, 489 U.S. 121, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989), for failure to contain a specific averment of a federal defense. Assuming the deficiency, it has long since been revealed as merely a procedural one which was cured by later filings and formal proof of the jurisdictional facts and as having indeed been waived by the state.
Mesa was only decided on February 21, 1989, five months after filing of the removal petition. The state did nothing in the district court to invoke Mesa’s new (or clarified) pleading requirement even after it was announced. For though the case was pending in the district court for two more months — until April 17 — the State never moved in that court to remand the prosecution to state court.
As is obvious from the full record, any effort by the state to have the case remanded after Mesa would have been unavailing in any event. For by the time Mesa was announced, there could have been no doubt about the existence of federal jurisdiction over this case. Long since, on October 24, 1988, Ivory had filed a motion to dismiss, in which he specifically averred the federal defense that he was entitled to dismissal
pursuant to Article VI of the United States Constitution [the Supremacy Clause], because he was an agent of the United States Government engaged in the performance of his lawful duties and was acting in a manner which he determined was necessary and proper in the discharge of his duties.
J.A. at 16. Had the State brought Mesa to the district court’s attention during the two months after that decision came down, jurisdiction would not have been defeated. A simple amendment of the removal petition to include the language in the motion to dismiss would have sufficed to satisfy Mesa’s pleading requirement if that had been thought necessary. See 28 U.S.C. § 1653. Indeed the allegations in the motion to dismiss could then properly have been treated as a sufficient amendment. See Willingham v. Morgan, 395 U.S. 402, 407 n. 3, 89 S.Ct. 1813, 1816 n. 3, 23 L.Ed.2d 396 (1969). If even more factual specificity had been thought necessary, cf. id. at 409 n. 4, 89 S.Ct. at 1817 n. 4 (“more detailed showing might be necessary” in criminal case), it obviously could have been supplied at that point. Having failed to raise what was never more than a curable procedural defect, the state simply had waived it as a basis for objection. See note 1, supra.
In any event, at the stage that we now consider the state’s belated jurisdictional challenge, any mere pleading deficiencies in jurisdictional allegations, whether or not earlier cured or technically waived, are of *1005course immaterial. For we now review a record in which the district court, without objection to its jurisdiction, has tried on the merits and entered judgment for a removing defendant upon a dispositive federal defense. In such a situation, the issue on appeal is not whether the case was properly removed but whether, as of the time judgment was entered, the district court had jurisdiction. Grubbs v. General Elec. Credit Corp., 405 U.S. 699, 702, 705, 92 S.Ct. 1344, 1348, 31 L.Ed.2d 612 (1972). That the asserted defense was at least sufficiently colorable to support federal jurisdiction was surely established as of the time of the judgment finding it proved on the merits.1
II
Because I would reject the state’s jurisdictional challenge, I would find it necessary, as the majority does not, to consider the state’s further challenge to the district court’s determination that on the merits Ivory was entitled to immunity. Doing so, I would affirm that decision. The district court’s findings of fact and conclusions of law on that issue are unassailable.
To prove his entitlement to immunity from criminal prosecution for vehicular homicide by the state, Ivory had the burden to prove that (1) he was performing an act which he was authorized to do by the law of the United States, and (2) in performing the act he did no more than what was necessary and proper for him to do. In re Neagle, 135 U.S. 1, 75, 10 S.Ct. 658, 672, 34 L.Ed. 55 (1890). This venerable principle,2 derived from the Supremacy Clause, has over time been refined in respects critical to its application here. The requirement that the conduct in issue be necessary and proper does not demand proof of necessity and propriety in fact, but only that at the time of its occurrence the agent honestly and reasonably thought the conduct necessary and proper in the discharge of his federally imposed duty. Clifton v. Cox, 549 F.2d 722, 728-30 (9th Cir.1977) (federal narcotics agent immune under In re Nea-gle principle to state murder prosecution for shooting fleeing felon). The test as refined thus incorporates both a subjective and an objective component: the agent's motive for his conduct must be an “honest” one, i.e., not criminal or wanton, but simply the doing of his duty; and his belief in the necessity must be a reasonable one under the circumstances. Kentucky v. Long, 837 F.2d 727, 745 (6th Cir.1988) (FBI agent immune under In re Neagle principle to state burglary prosecution for conduct in “sting” operation); In re McShane’s Petition, 235 F.Supp. 262 (N.D.Miss.1964) (U.S. Marshal immune under In re Neagle principle to state prosecution for breach of peace and inciting riot for ordering tear gas dispersal of crowd protesting James Meredith’s admission to state university). Un*1006der this principle, immunity may therefore be found even where a federal agent’s belief about the necessity for his conduct is mistaken and his judgment about its propriety flawed. McShane, 235 F.Supp. at 274.
The district court faithfully applied those principles to the evidence in this case in finding Ivory entitled to immunity. There was more than ample evidence to support the critical factfindings that Ivory was under orders from “his military superiors to proceed into intersections if he saw that it was safe to do so,” and that “he did think it was safe to enter this intersection and he did so in obedience to his orders.” J.A. at 22.
These facts were found by a magistrate, and adopted by the district court after an independent review of the record, on the basis of an evidentiary hearing at which Ivory and the investigating State Highway Patrol Officer testified. More specific fact-findings by the magistrate emphasize the correctness of the district court’s decision.
First, there was no doubt that Ivory was acting under direct orders of his superiors respecting his conduct as one of the truck drivers in a military convoy. The magistrate found that:
During that day [of the accident], the defendant was ordered by his military superiors to drive a 5 ton military truck in a convoy. He was given a briefing and instructions which included the directive that he maintain the proper distance between each vehicle in the convoy and obey all traffic laws. The proper distance between trucks was one and a half truck lengths.
J.A. at 20. It was a dark night, and though there were normally traffic lights at the intersection where the accident occurred, there were no operational signals at the time of the accident, as they were in the process of being replaced. Concededly there was no military emergency or need to go fast. Id. As the twenty trucks preceding Ivory in the convoy turned left through the intersection, “traffic in the right lane [of the intersecting highway] had stopped, yielding the right of way to the convoy.” Id. at 20-21. Following the truck in front of him, Ivory proceeded through the intersection at 5-7 miles per hour. Id. at 21. Ivory did not see Jason Pickett’s car, which unlike the stopped cars heading east in the right hand lane, did not stop to yield to the convoy, but proceeded in the left lane past the stopped cars in the right lane into the intersection when the collision occurred. Id. at 22.
Under these circumstances, the critical issue for Ivory’s official immunity defense became whether he reasonably believed his action of entering the intersection was necessary and justifiable in carrying out his orders to maintain his assigned place in the convoy. “[B]ecause of his demeanor while testifying,” id., the magistrate fully credited Ivory’s testimony respecting his perceptions and motivation in proceeding as he did. Of critical importance in this connection is the following testimony by Ivory:
Q: Corporal Ivory, you said you had a duty to yield to the vehicles that were going east, why did you not yield to them in this particular case?
A: As I was about to yield, I was coming, actually I was about to make a complete stop, the truck was slowing down, and when I drive I start off in second gear because this is the easiest gear for the truck;
At this time the cars that had yielded or came to a complete stop, that if I’m not mistaken, going east, they had flashed their high beams letting me know that it was okay to proceed along with the other trucks;
At this time I thought it was my better judgment to go ahead and complete because it was safe.
Q: Now did you receive any instructions along this line?
A: As in proceeding?
Q: Yes.
A: Yes, I did.
Q: Okay. Can you explain to the Court what general instructions you had received about that?
A: Well, on previous briefings they say, like I said before, follow all, obey all traffic regulations and rules and if you have the right of way or a car, the oncoming cars give you the right of way, *1007go ahead and maintain, maintain the convoy, but if you don’t, then you have no other choice but to stop and let the other vehicles pass through safely.
Q: Were you following these instructions on this occasion?
A: Yes, I was.
Q: When you were proceeding on did you feel that you were following the instructions of your sergeants and the people that instructed you on how to maintain the convoy?
A: Yes.
J.A. at 81-83.
I suggested at the outset that this was a classic case for applying the immunity principle, as the district court correctly did. Here a Marine corporal, under direct orders to maintain the integrity of the military convoy in which he was a driver except as it became apparent that he must yield the right of way, was confronted with exactly the sort of conflict of possible paths of duty for which the immunity defense is designed. He chose to proceed in obedience to the primary federal duty, perceiving that all oncoming traffic in the opposite lanes had yielded the right of way to his convoy. This was an eminently reasonable choice under the circumstances then apparent to Ivory. Other cars heading east into the intersection had stopped, obviously yielding to the passage of the convoy as it turned through the intersection. The perception that other traffic coming upon the intersection and seeing the stopped cars would also yield was reasonable, even though mistaken as things developed.
A critical distinction between this case and Mesa, both of which involved claims of immunity from state criminal prosecutions for traffic law violations, lies in the nature of the different federal duties involved. In Mesa, the only duty — as reflected in the whole record — was the general duty to deliver the mail — accurately and expeditiously. No one reasonably could have believed that in performing that general duty it was necessary and proper to risk violating state traffic laws of general applicability. Cf. Johnson v. Maryland, 254 U.S. 51, 56, 41 S.Ct. 16, 65 L.Ed. 126 (1920) (principle does not grant “a general immunity from state law while acting in the scope of [federal] employment”). The Mesa Court therefore could say that under the circumstances revealed on that record, removal was not warranted because the defendants “could not present an official immunity defense.” 109 S.Ct. at 967. In the instant case by contrast Ivory’s duty was not the comparably general one simply to drive his truck independently from Point A to Point B safely and expeditiously, but a more specific one to drive his truck, while maintaining an assigned place in a convoy, from Point A to Point B expeditiously and safely. The general duty being performed in Mesa posed no inherent risk of conflict with state traffic laws; the specific duty being performed in the instant case demonstrably did, thereby creating a need for the immunity defense not present in Mesa.
In this critical distinction lies the adequate safeguard against the danger noted in Mesa, of permitting routine removal of state traffic law prosecutions to federal courts. 109 S.Ct. at 969.
Like the federal marshals in In re Nea-gle and McShane, the federal narcotics agent in Clifton, the FBI agent in Long, and many other federal officials and agents confronted with conflicting claims of duty, Ivory was plainly entitled to the federal immunity accorded him by the district court.
I would affirm.
. Mesa itself confirms that removal jurisdiction under § 1442(a)(1) cannot be denied solely on the basis of a pleading deficiency in the removal petition if jurisdiction is otherwise established on the whole record before the court. As the Mesa Court was careful to say, jurisdiction was lacking in that case because the defendants both ”ha[d] not and could not present an official immunity defense to the state criminal prosecutions brought against them.” 109 S.Ct. at 967 (emphasis supplied). On the jurisdictional record in Mesa, which consisted solely of the state’s criminal charging documents and the removal and remand papers, the Court was able to find jurisdiction not only insufficiently pleaded in the removal petition but actually impossible of establishment. This could be said in Mesa because it was manifest on the whole record that the defendants could not prove anything more than that they were acting in the course of their federal duties as mail carriers when the accidents in issue occurred. On the whole record in Mesa, therefore, jurisdiction was not merely insufficiently pleaded, its absence was affirmatively shown. Moreover, in Mesa the State of California filed a timely objection to the removal petition, in the form of responsive motions to remand, which North Carolina has failed to do in this case. 109 S.Ct. at 962.
. The principle has been worked out and applied both in habeas corpus and removal settings, and of course applies substantively the same way in each. In habeas, rejection of the immunity defense results in denial of the writ, allowing prosecution to proceed in the state court. See, e.g., Morgan v. California, 743 F.2d 728 (9th Cir.1984). In removal proceedings, a federal rejection of the immunity defense does not require remand; prosecution by the state proceeds in the federal court. See, e.g., Tennessee v. Davis, 100 U.S. 257, 25 L.Ed. 648 (1880).