UNITED STATES COURT OF APPEALS
Filed 6/6/96
TENTH CIRCUIT
PAT HAYES,
Plaintiff-Appellant,
v.
No. 95-6198
BENJAMIN DEMPS, JR., Director, (D.C. No. CIV-95-458-L)
Oklahoma Department of, Human (W.D. Okla.)
Services,
Defendant-Appellee.
ORDER AND JUDGMENT*
Before BRORBY, EBEL, and HENRY, Circuit Judges.**
Appellant Pat Hayes appeals the district court’s dismissal of this action for lack of
subject matter jurisdiction. We AFFIRM.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge panel has
determined unanimously that oral argument would not be of material assistance in the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
On April 13, 1992, Hayes applied to the Oklahoma Department of Human Services
(“DHS”) for Aid to Families With Dependent Children (“AFDC”) benefits. His
application was denied on May 6, 1992 because he had no eligible children in the home.
(Appee App. at 34). Hayes requested and was granted an administrative hearing, which
was held on June 16, 1992. (Id. at 35-36). The denial of his application was upheld
despite Hayes’ references to the Social Security Act and allegations of discrimination.
(Id. at 36.) Hayes then requested further review of his case by the Director of the
Department of Human Services. (Id. at 38). The Director issued a decision letter dated
September 29, 1992, approving Hayes’ application for the month of April 1992 only, with
ineligibility to begin May 1992. (Id. at 39). On December 11, 1992 Hayes filed a petition
in state court requesting judicial review of the Director’s decision. (Id. at 44). The
petition was dismissed by the state district court as untimely, because it was not brought
within 30 days of the final agency decision as required by Okla. Stat. tit. 56, § 168(C).
(Id. at 45). Hayes appealed that dismissal to the Oklahoma Court of Appeals and the
Oklahoma Supreme Court, both of which affirmed the dismissal. (Id. at 51, 56).
Hayes reapplied for AFDC benefits in April 1993. (Id. at 46). This application
was denied, again because Hayes had no eligible children in the home. (Id.) Hayes
timely requested and received an administrative hearing and review by the Director. (Id.
at 48-50). In his second decision letter, the Director informed Hayes that “[t]his issue
was considered in an administrative hearing on June 16, 1992 and a final decision
-2-
rendered by me on September 29, 1992.” (Id. at 50). This second letter was issued on
October 13, 1993 (id.), and Hayes filed a petition in state court for judicial review of the
denial letter on November 12, 1993. (Id. at 1).
On February 22, 1995, the state district court granted the Defendant’s motion to
dismiss Hayes’ petition and, finding the action frivolous, awarded attorney fees to the
Defendant. (Id. at 57). On March 24, 1995, Hayes filed a “Notice of Removal . . . to
Federal District Court.” (Id. at 59-60). The district court, concluding that Hayes was
attempting to appeal an adverse decision of a state court judgment, dismissed this action
without prejudice for lack of subject matter jurisdiction. (Id. at 60). Hayes appeals.
Hayes invokes federal jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343(3),
claiming that DHS Manual Section 337.2 violates the Equal Protection Clause of the
Fourteenth Amendment and contravenes the Social Security Act. Even assuming
arguendo that Hayes raises a valid constitutional claim, he cannot remove his action to
federal district court. Where appropriate, actions may be removed from state to federal
court “by the defendant or the defendants,” 28 U.S.C. § 1441(a), within 30 days of the
defendant’s receipt of the initial pleadings. 28 U.S.C. § 1446(b). A plaintiff may not
seek removal to federal court, nor may any party attempt to appeal an adverse state court
decision to federal district court. The district court, therefore, was correct in holding that
it lacked subject matter jurisdiction over this action.
-3-
Hayes argues now that his Notice of Removal was erroneously filed, and that the
action was dismissed before he could submit a “proper complaint.” Although the courts
are obliged to construe pro se pleadings liberally, see Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991), no construction of Hayes’ pleadings remedies the jurisdictional
defect here. We further note that the district court’s dismissal of Hayes complaint was
without prejudice Accordingly, we AFFIRM the April 18, 1995 order of the district
court for substantially the reasons stated therein.
The mandate shall issue forthwith.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
-4-