ELD-023-E NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-2103
___________
IN RE: MEL M. MARIN,
Petitioner
____________________________________
On a Petition for Writ of Mandamus from the
United States District Court for the Middle District of Pennsylvania
(Related to M.D. Pa. Civ. No. 1-14-cv-00669)
____________________________________
Submitted Pursuant to Rule 21, Fed. R. App. P.
Before: AMBRO, FISHER and GARTH, Circuit Judges
(Opinion filed: May 14, 2014)
_________________
OPINION
_________________
PER CURIAM
Mel A. Marin was a candidate for the United States Congress in Pennsylvania’s
Third Congressional District. The registered Democratic Elector of that district filed an
action in the Commonwealth Court of Pennsylvania objecting to Marin’s nomination
petition on the ground that certain of his signatures were invalid under state law. The
Commonwealth Court ultimately agreed and set aside Marin’s nomination petition.
Before the Commonwealth Court ruled, Marin purported to remove the action to
federal court. The District Court later remanded it to state court under 28 U.S.C.
§ 1447(c) after concluding that it lacked subject matter jurisdiction. Marin then filed the
present mandamus petition seeking an order directing the District Court to exercise
jurisdiction and grant relief on the merits. We will deny the petition.
Because the District Court remanded the action for lack of subject matter
jurisdiction, its remand order is “not reviewable on appeal or otherwise” unless the action
falls within certain exceptions. 28 U.S.C. § 1447(d); see also Quackenbush v. Allstate
Ins. Co., 517 U.S. 706, 711-12 (1996). This prohibition on review applies to mandamus
petitions. See Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 343 (1976); In re
Federal-Mogul Global, Inc., 300 F.3d 368, 388 (3d Cir. 2002).
Marin argues that this prohibition does not apply because § 1447(d) excepts
actions removed under 28 U.S.C. § 1443. This argument lacks merit for two reasons.
First, Marin purported to remove this action under 28 U.S.C. § 1441 on the basis of
federal question jurisdiction, and his notice of removal did not mention § 1443.
Second, this action does not constitute a “civil rights action” within the meaning of
either of the two narrow subsections of § 1443. See 28 U.S.C. § 1443(1) and (2). The
first subsection applies only when the state-court defendant (1) is being deprived of rights
guaranteed by a federal law “‘stated in terms of racial equality,’” and (2) is being denied
or cannot enforce those rights in state court. Davis v. Glanton, 107 F.3d 1044, 1047 (3d
Cir. 1997) (quoting Georgia v. Rachel, 384 U.S. 780, 792 (1966)). “[T]he second
subsection . . . confers a privilege of removal only upon federal officers or agents and
2
those authorized to act with them” in executing certain duties. City of Greenwood v.
Peacock, 384 U.S. 808, 824 (1966). The Elector’s challenge to Marin’s nomination
petition does not implicate either subsection.
Marin argues that this action nevertheless qualifies because he asserted
“compulsory counterclaims” for the denial of equal protection in his brief before the
District Court. Even assuming that such claims were before the District Court and are
relevant for present purposes, however, Marin has not shown that these claims fall within
the narrow exception created by § 1443. Marin’s equal protection challenge is largely
unspecified, but he has not claimed that it relates to his rights to racial equality under a
federal law that cannot be enforced in Pennsylvania or otherwise attempted to explain
how it qualifies.
Marin also requests that we award him relief on the merits in the first instance by,
inter alia, directing the placement of his name on the ballot. We have no independent
jurisdictional basis to do so. See 28 U.S.C. § 1651(a); see also United States v. Christian,
660 F.2d 892, 894 (3d Cir. 1981) (“Before entertaining [a mandamus petition] . . . we
must identify a jurisdiction that the issuance of the writ might assist.”).
Finally, after he filed his mandamus petition, Marin sought reconsideration of the
District Court’s remand order and the District Court denied it. Because we lack
jurisdiction to review the underlying remand order, we also would lack jurisdiction to
review the District Court’s order denying reconsideration. See Agostini v. Piper Aircraft
Corp., 729 F.3d 350, 355 (3d Cir. 2013). For these reasons, we will deny the petition.
3