IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-30451
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DELTA RADIOLOGY LTD.; CHRISTOPHER FRANCIS
LAWRENCE, M.D.; ROBERTO MOLINA MARTINEZ, M.D.;
EDUARDO MOLINET, M.D.; JASH I. PATEL, M.D.;
PAUL R. ROSEL, M.D.; ARTHUR JERRY
SATTERLEE, M.D.; FLOYD EDGAR SCALES, M.D.;
RICHARD HOWARD TUPLER, M.D.; PHILLIP DAVID
WEAVER, M.D.; STEVEN DAVID YELLIN, M.D.,
Plaintiffs-Appellants,
versus
HOSPITAL SERVICE DISTRICT NO. 2 OF
JEFFERSON PARISH, doing business as
East Jefferson General Hospital,
Defendant-Appellee.
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_____________________
No. 99-30453
_____________________
JEFFERSON PARISH HOSPITAL SERVICE
DISTRICT NO. 2, Parish of Jefferson,
State of Louisiana doing business as
East Jefferson General Hospital,
Plaintiff-Appellee,
versus
DELTA RADIOLOGY, LTD., A Professional
Corporation; CHRISTOPHER FRANCIS
LAWRENCE, M.D.; ROBERTO MOLINA MARTINEZ, M.D.;
EDUARDO MOLINET, M.D.; JASH I PATEL, M.D.;
PAUL R. ROSEL, M.D.; ARTHUR JERRY SATTERLEE, M.D.;
FLOYD EDGAR SCALES, M.D.; RICHARD HOWARD
TUPLER, M.D.; PHILLIP DAVID WEAVER, M.D.;
STEVEN DAVID YELLIN, M.D.,
Defendants-Appellants.
_________________________________________________________________
Appeals from the United States District Court for the
Eastern District of Louisiana
(99-CV-434-B & 99-CV-978-B)
_________________________________________________________________
March 9, 2000
Before JOLLY and DeMOSS, Circuit Judges, and DAVID D. DOWD,*
District Judge.
PER CURIAM:**
Pending before us is the appeal of the plaintiff, Delta
Radiology, Ltd., from the judgment that dismissed its suit, (Number
99-0434), for lack of subject matter jurisdiction, and that
remanded the suit of the defendant, East Jefferson General
Hospital(“EJGH”),(Number 99-0978), back to state court. The chief
issue presented by this appeal is whether the district court erred
in holding that Delta failed to raise a sufficient question of
federal law allowing the court to exercise its federal question
jurisdiction. Finding no error on the part of the district court,
we affirm.
Count 1 of Delta’s complaint, which seeks declaratory relief,
fails to provide a sufficient basis for the district court to
exercise its federal question jurisdiction. Any potential question
*
District Judge of the Northern District of Ohio, sitting by
designation.
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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of federal law implicated by this claim would arise only as a
defense to a potential claim by EJGH seeking to enforce the May
1997 Agreement. See Lowe v. Ingalls Shipbuilding, 723 F.2d 1173,
1179 (5th Cir. 1984)(stating that in determining whether our court
has subject matter jurisdiction in a declaratory judgment action,
the court must ask whether “a coercive action brought by the
declaratory defendant” would implicate a federal question); and
Coury v. Prot, 85 F.3d 244, 255 (5th Cir. 1996)(stating that
illegality of contract is an affirmative defense under federal
law). Consequently, Count 1 does not provide a sufficient basis
for the exercise of federal question jurisdiction.
Similarly, Count 2 of Delta’s complaint, although cloaked in
constitutional language, likewise fails to state a cognizable
federal question. Although it is true that the due process clause
does “provide[] a mechanism by which a person’s property or liberty
may not be permanently diminished or abrogated without first being
accorded that procedural protection designed to ensure a principled
and evenhanded examination of the basis of any such deprivation,”
“[b]y its own terms, the due process clause is not implicated
unless an individual’s property or liberty interests are
threatened.” Martin v. Memorial Hosp. at Gulfport, 130 F.3d 1143,
1147 (5th Cir. 1997). It is clear that Delta has failed to
identify the source of any property interest that is implicated
after the termination of the May 1997 Agreement. Consequently,
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Court 2 fails to state a federal question. The judgment of the
district court is therefore AFFIRMED.
Finally, we turn to Delta’s contention that the district court
erred in remanding the companion case, Number 99-0978, back to
state court. Our precedent is clear that under the factual
circumstances presented by this case, “an order remanding a case to
[the] State court from which it was removed is not reviewable on
appeal or otherwise.” Smith v. Texas Children’s Hosp., 172 F.3d
923, 925 (5th Cir. 1999); see also 28 U.S.C. § 1447(d) (West 1999).
Consequently, we lack jurisdiction to consider the merits of this
appeal and it is DISMISSED.
AFFIRMED; DISMISSED.
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