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GLD-020 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 10-3927

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IN RE: MICHAEL JOHN PISKANIN, JR.,

Petitioner,

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On a Petition for Writ of Mandamus from 

United States District Court

for the Eastern District of Pennsylvania

(Related to D.C. Crim. No. 10-cr-00211 )

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Submitted Pursuant to Fed. R. App. Pro. 21

October 28, 2010

Before: AMBRO, CHAGARES AND NYGAARD, Circuit Judges

(Opinion filed November 4, 2010)

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OPINION

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PER CURIAM

Appellant Michael J. Piskanin, Jr. was convicted following a jury trial in the Court 

of Common Pleas of Lehigh County, Pennsylvania of theft by deception, receiving stolen 

property, and identity theft. See generally Piskanin v. Hammer, 269 Fed. Appx. 159, 
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160-61 (3d Cir. 2008). On June 8, 2009, Piskanin submitted a petition for removal 

pursuant to 28 U.S.C. § 1442 in United States District Court for the Eastern District of 

Pennsylvania, D.C. Crim. No. 09-cr-00387, seeking to remove his state criminal case to 

federal court. Piskanin alleged that he acted as an operative of United States law 

enforcement agencies from 2001 to 2004, and his criminal prosecution was in retaliation 

for information he had supplied to the federal government about Lehigh County officials. 

The Government submitted a response, arguing that the removal petition was untimely 

under 28 U.S.C. § 1445(c)(1) because it was filed without leave of court well after 

Piskanin’s arraignment and trial. Moreover, good cause did not exist for excusing the 

time requirements. The Government also disputed that Piskanin was acting on behalf of 

the federal government when he committed the acts for which he now stands convicted in 

the state case. 

In an order entered on July 9, 2009, the District Judge dismissed the removal 

petition, declining to exercise jurisdiction and thus leaving the criminal case in state 

court. The court reasoned that removal under 28 U.S.C. § 1442(a)(1) is only authorized 

where there is a causal connection between the charges raised against the individual in 

the state court criminal proceedings and his prior services to federal law enforcement 

agencies and agents. Piskanin appealed, and we dismissed the appeal (C.A. No. 09-3232) 

for lack of appellate jurisdiction under 28 U.S.C. § 1447(d) and Trans Penn Wax Corp. v. 

McCandless, 50 F.3d 217, 222 (3d Cir. 1995) (district court order in effect remanding 
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action to state court based on lack of subject matter jurisdiction is unreviewable).

On April 7, 2010, Piskanin filed another removal petition in the Eastern District of 

Pennsylvania, D.C. Crim. No. 10-cr-00211, again claiming that he is entitled to removal 

of his state court criminal case on the basis of his work for the Federal Bureau of 

Investigation. In an order entered on April 13, 2010, the District Judge again dismissed 

the removal petition, noting Piskanin’s history of removal petitions and the Government’s 

prior response denying his assertion that, during the relevant time period, he had acted 

under an officer of the United States or any agency thereof. Following the denial of a 

motion for reconsideration, Piskanin appealed, and again we dismissed the appeal (C.A. 

No. 10-2336) for lack of appellate jurisdiction under 28 U.S.C. § 1447(d) and Trans Penn 

Wax Corp., 50 F.3d at 222.

At issue now, Piskanin has filed a petition for writ of mandamus in connection 

with his second attempt at removing his state criminal proceedings to federal court (D.C. 

Crim. No. 10-cr-00211). Piskanin contends that the United States Attorney’s disavowal 

of his assistance to the federal government requires an investigation and a hearing. The

hearing, at which he would call certain active and retired agents of the FBI, would 

establish his service as an operative, and thus the bases for removal of his state criminal 

case and his assertion that he is entitled to federal officer immunity. Piskanin contends 

that he supplied information to the federal government about alleged criminal acts by 

certain Lehigh County officials, and he was prosecuted by those Lehigh County officials 
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in retaliation. He contends that the District Judge exceeded her authority by refusing to 

assume jurisdiction over his state case, denying him a writ of habeas corpus under 28 

U.S.C. § 1446(e) (providing for federal court to take custody once criminal case is 

removed), and denying him an evidentiary hearing. 

Piskanin further argues that mandamus is his only available remedy; he has no 

other adequate means to seek review of the District Judge’s actions. He seeks the 

following: an order directing the District Judge to assume jurisdiction over his state 

criminal case and to issue a writ bringing him into federal custody, a hearing to establish 

his entitlement to federal officer immunity, and a declaration that he has federal officer 

immunity.

We will deny the petition for writ of mandamus. Our jurisdiction derives from 28 

U.S.C. § 1651, which grants us the power to “issue all writs necessary or appropriate in 

aid of (our) . . . jurisdiction and agreeable to the usages and principles of law.” But a writ 

of mandamus is an extreme remedy that is invoked only in extraordinary situations. See

Kerr v. United States Dist. Court, 426 U.S. 394, 402 (1976). To justify the use of this 

extraordinary remedy, a petitioner must show both a clear and indisputable right to the 

writ and that he has no other adequate means to obtain the relief desired. See Haines v. 

Liggett Group Inc., 975 F.2d 81, 89 (3d Cir. 1992).

Assuming that Piskanin has no other adequate means to obtain review of the 

District Judge’s actions in D.C. Crim. No. 10-cr-00211, cf. Pennsylvania v. Newcomer, 
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618 F.2d 246, 248 (3d Cir. 1980) (order denying state’s motion to remand criminal case 

reviewed under mandamus standard), he must nevertheless also show a clear and 

indisputable right to the writ. For this, we must consider whether removal was proper 

under 28 U.S.C. § 1442 and whether it was timely under section 1446(c). See

Newcomer, 618 F.2d at 249.

Section 1442(a)(1) provides that a criminal prosecution commenced in a state 

court may be removed to federal district court if the defendant in the criminal prosecution 

is “any officer (or any person acting under that officer) of the United States or of any 

agency thereof, sued in an official or individual capacity for any act under color of such 

office....” 28 U.S.C. § 1442(a)(1). Any such removal petition generally must be filed 

“not later than thirty days after the arraignment in the State court, or at any time before 

trial, whichever is earlier....” 28 U.S.C. § 1446(c)(1). Upon a showing of good cause, 

the District Judge may grant the defendant leave to file a notice of removal at a later time. 

See id.

Piskanin’s removal petition, filed after he was convicted, plainly was untimely 

under 28 U.S.C. § 1446(c)(1). Furthermore, under section 1442(a)(1), removal is not 

available where there is no “causal connection between what the officer has done under 

asserted official authority and the state prosecution. It must appear that the prosecution 

of him, for whatever offense, has arisen out of the acts done by him under color of federal 

authority and in enforcement of federal law.... Mesa v. California, 489 U.S. 121, 131-32
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(1989) (quoting Maryland v. Soper, 270 U.S. 9, 33 (1926)). 

Even assuming that Piskanin has sufficiently alleged that his prior work for federal 

law enforcement agencies or federal agents entitles him to the status of a federal official, 

something we seriously doubt, he is entitled to relief only if the charges brought against 

him in state court arose directly from his actions as a federal official. See id. Piskanin 

has failed to allege any actions he took in the performance of his duty as a federal officer 

that could constitute the basis of a prosecution for theft by deception, receiving stolen 

property, or identity theft. Because the required causal connection is missing, removal 

was not proper under 28 U.S.C. § 1442(a)(1), and thus Piskanin has not shown a clear 

and indisputable right to the writ, see Haines, 975 F.2d at 89. A hearing on the matter is 

unwarranted.

We will deny the petition for writ of mandamus.