Case: 09-10389 Document: 00511049094 Page: 1 Date Filed: 03/11/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 11, 2010
No. 09-10389 Charles R. Fulbruge III
Clerk
JOHN WILEY PRICE,
Plaintiff-Appellee
v.
EDDIE BERNICE JOHNSON,
Defendant-Appellant,
Appeal from the United States District Court
for the Northern District of Texas
Before REAVLEY, DAVIS, and STEWART, Circuit Judges.
REAVLEY, Circuit Judge:
This case arises out of a dispute between two Texas public officials.
Pursuant to state procedural rules, Appellee John Wiley Price, a Dallas County
Commissioner, sought an order in state court to take an investigatory deposition
of Appellant Congresswoman Eddie Bernice Johnson. Rep. Johnson removed the
matter to federal court under the federal officer removal statute, 28 U.S.C.
§ 1442(a)(1), but the district court remanded it to state court because Price’s
petition was not a “civil action” subject to removal. Rep. Johnson appeals the
district court’s order. We lack jurisdiction to review the district court’s remand
order, and we DISMISS the appeal.
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I.
The genesis of the dispute between Commissioner Price and Rep. Johnson
is an interview that the Congresswoman gave in December 2008 to the Dallas
Observer in which she allegedly made statements questioning Commissioner
Price’s ethics and accusing him of “shaking down” parties involved in a land
development. As a result of the interview, Commissioner Price filed in the 14th
Judicial District Court of Dallas County, Texas a Verified Petition To Take
Deposition Before Suit under Texas Rule of Civil Procedure 202.1.1 The petition
stated that Price did not know whether he intended to pursue a lawsuit against
Rep. Johnson but sought to take the Congresswoman’s deposition in order to
investigate potential claims for defamation.
Rep. Johnson removed the petition to the United States District Court for
the Northern District of Texas, citing as grounds for removal the federal officer
removal statute, 28 U.S.C. § 1442(a)(1). That statute permits inter alia removal
to federal court when a “civil action” has been filed against an officer of the
United States who was acting under color of her office.2 Rep. Johnson asserted
1
The state rule provides:
A person may petition the court for an order authorizing the taking of a
deposition on oral examination or written questions either:
(a) to perpetuate or obtain the person’s own testimony or that of any other
person for use in an anticipated suit; or
(b) to investigate a potential claim or suit.
TEX . R. CIV . P. 202.1.
2
The statute states, in relevant part:
A civil action or criminal prosecution commenced in a State court against any
of the following may be removed by them to the district court of the United
States for the district and division embracing the place wherein it is pending:
2
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No. 09-10389
in her removal notice that she was the subject of a pre-suit discovery action
under Texas Rule 202.1 that concerned actions taken by her under color of her
office as a United States Representative and Member of the House.
Upon motion by Commissioner Price, the district court remanded the
petition to state court. The district court reasoned that a Rule 202.1 proceeding
in state court is not a removable “civil action” under § 1442(a)(1) because it
asserts no claim upon which relief can be granted and instead seeks an order for
a deposition that may or may not result in the filing of an actual suit. Rep.
Johnson challenges the district court’s order on appeal. We first must examine
our own appellate jurisdiction. See Bader v. Atl. Int’l, Ltd.3
II.
A remand order is generally barred from appellate review by 28 U.S.C.
§ 1447(d), which provides that “[a]n order remanding a case to the State court
from which it was removed is not reviewable on appeal or otherwise . . . .” This
bar to review applies even if the order might otherwise be deemed erroneous.
Smith v. Tex. Children’s Hosp.4 The immunity from appellate review is
narrowed, however, when § 1447(d) is read in pari materia with 28 U.S.C.
§ 1447(c), so that only remand orders based on grounds recognized in § 1447(c)
(1) The United States or any agency thereof or 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 or on account
of any right, title or authority claimed under any Act of Congress for the
apprehension or punishment of criminals or the collection of the revenue.
28 U.S.C. § 1442(a)(1).
3
986 F.2d 912, 914 (5th Cir. 1993) (“Prior to reviewing the merits of any case, this
Court must be satisfied that it has subject matter and appellate jurisdiction.”).
4
172 F.3d 923, 925 (5th Cir. 1999) (discussing Thermtron Prods., Inc. v. Hermansdorfer,
423 U.S. 336, 343, 96 S. Ct. 584, 589 (1976)).
3
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are unreviewable. Things Remembered, Inc. v. Petrarca. 5 Those grounds are
defects in the removal procedure or lack of subject matter jurisdiction.6 There
is no contention in this case of a defect in the removal procedure. Therefore, if
the district court’s remand order was based on a lack of jurisdiction, we may not
review the order in this appeal.
In order to exercise our appellate jurisdiction, we require that the district
court’s order clearly show the remand was not based on § 1447(c): “[W]e will only
review remand orders if the district court affirmatively states a non-1447(c)
ground for remand.” Soley v. First Nat’l Bank of Commerce.7 As noted above,
the district court remanded the petition because it did not satisfy § 1442(a)(1)’s
requirement of a “civil action.” This was not a clear affirmative statement of a
non-1447(c) ground, and it may not be reviewed.
We have previously held that the failure to satisfy § 1442 deprives the
federal court of subject matter jurisdiction. See Guadalupe-Blanco River Auth.
v. City of Lytle.8 Therefore, fairly read, the district court’s remand order based
on the belief that the petition was not removable under § 1442(a)(1) was based
5
516 U.S. 124, 127–28, 116 S. Ct. 494, 497 (1995) (citing Thermtron Prods., 423 U.S.
at 345–46, 96 S. Ct. at 590–91).
6
Id.; see 28 U.S.C. § 1447(c) (“A motion to remand the case on the basis of any defect
other than lack of subject matter jurisdiction must be made within 30 days after the filing of
the notice of removal under section 1446(a). If at any time before final judgment it appears
that the district court lacks subject matter jurisdiction, the case shall be remanded.”).
7
923 F.2d 406, 408 (5th Cir. 1991) (internal quotation omitted); see also In re Weaver,
610 F.2d 335, 337 (5th Cir. 1980) (holding that court is precluded from reviewing remand order
where district court did not clearly rely on a non-§ 1447(c) ground for remand); In re
Merrimack Mut. Fire Ins. Co., 587 F.2d 642, 648 (5th Cir. 1978) (“[I]t appears that Thermtron
was intended to be strictly limited to those cases in which a district judge has actually stated
that he is not relying on § 1447(c) in ordering a remand.”).
8
937 F.2d 184, 185–86 (5th Cir. 1991); see also Niagra Mohawk Power Corp. v. Bankers
Trust Co. of Albany, N.A., U.S., 791 F.2d 242, 244 (2d Cir. 1986) (“The removal statute used
by the government in this case, 28 U.S.C. § 1442(a)(1), confers jurisdiction as well as the right
of removal.”).
4
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on a lack of subject matter jurisdiction.9 We find Guadalupe-Blanco to be
instructive. In that case, two federal agency defendants removed to federal court
a state suit to adjudicate water rights and moved to dismiss based on sovereign
immunity.10 The version of § 1442(a)(1) in effect at that time did not permit
agencies to assert federal officer removal—only federal officers could do so.11
Because the defendants could not rely on § 1442(a)(1) as the basis for
jurisdiction, and there was no other basis for federal court jurisdiction in the
case, we held that there was no subject matter jurisdiction and dismissed the
appeal.12
The same rationale applies in this case. The district court concluded that
Rep. Johnson could not rely on § 1442(a)(1), although for a reason different from
Guadalupe-Blanco, viz. the lack of a “civil action.” There is no other basis
apparent on the record for federal jurisdiction.13 Because § 1442(a)(1) is a
jurisdictional statute, the district court’s finding that Rep. Johnson failed to
satisfy the statute’s requirements leads to the natural conclusion that the
district court felt there was no subject matter jurisdiction, and the appeal must
be dismissed.
9
See, e.g., Weaver, 610 F.2d at 337 (holding that although district court did not cite
specific language of § 1447(c) in remand order but believed the case was not removable, the
“logical inference” was that the court felt jurisdiction was lacking).
10
Guadalupe-Blanco, 937 F.2d at 185.
11
Id. Section 1442(a)(1) has since been amended to permit agencies as well as officers
to remove such suits. See Pub. L. No. 104-317, 110 Stat. 3847, § 206(a)(1) (1996).
12
Guadalupe-Blanco, 937 F.2d at 185.
13
We note that in the “Jurisdictional Statement” of her brief to this court, Rep. Johnson
acknowledged that the district court’s subject matter jurisdiction arose from § 1442. We also
note that, unlike the Texas state rules, the Federal Rules of Civil Procedure, which would be
applicable to the removed petition, do not permit pre-suit investigative depositions. See FED .
R. CIV . P. 27(a).
5
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Rep. Johnson argues that the Supreme Court in Caterpillar Inc. v. Lewis 14
recognized a distinction between subject matter jurisdiction and the statutory
requirements permitting removal to federal court. She therefore suggests that
the “civil action” requirement for removal under § 1442(a)(1) is merely a
statutory element the failure of which does not implicate subject matter
jurisdiction. Under this reasoning, the district court’s remand would not be
based on § 1447(c) and could be reviewed. We find the argument and the
citation to Caterpillar unpersuasive.
In Caterpillar, the Court had to decide whether the absence of complete
diversity, as required by 28 U.S.C. § 1441(a), at the time of removal was fatal to
a federal court adjudication even though the defect had been cured by the
dismissal of a non-diverse defendant before trial and was no longer present at
the time the district court entered judgment.15 The Supreme Court held that the
judgment could stand.16 In doing so, the Court noted that although the
“jurisdictional defect” had been cured in the case by the time of judgment, the
“statutory flaw” of failing to meet § 1441(a)’s requirements at the time of
removal “remained in the unerasable history of the case.”17 But the Court did
not disturb the judgment because the federal jurisdictional requirements had
been met at the time judgment was entered. Rep. Johnson asserts that the
quoted language necessarily means that not every aspect of a removal statute
concerns subject matter jurisdiction. We acknowledge that the Court spoke of
both a jurisdictional defect and a statutory violation in Caterpillar, but in that
14
519 U.S. 61, 117 S. Ct. 467 (1996).
15
Id. at 65, 117 S. Ct. at 471.
16
Id.
17
Id. at 73, 117 S. Ct. at 475.
6
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case the two were the same, i.e., the absence of complete diversity.18 The Court
was merely explaining the question it had to address in the case due to the
timing of the defect and its cure.19
Caterpillar did not directly address the question in this case of whether
the remand for failure to satisfy the removal statute is unreviewable because it
is based on a lack of jurisdiction. A later portion of the opinion is instructive,
however. The respondent there asserted that if the judgment was allowed to
stand, despite the initial statutory defect in the removal, the procedural rules for
removal would in effect become unenforceable and defendants would be
encouraged to remove cases prematurely.20 The Caterpillar Court rejected the
argument and noted that this was unlikely because a “well-advised” defendant
would foresee the result of attempting to remove without meeting the
requirements of the removal statute: “a swift and nonreviewable remand
order.”21 That is precisely the outcome warranted in the instant case.
Rep. Johnson also argues in her supplemental letter brief that because the
Attorney General has determined under the Westfall Act that she was acting
within the scope of her federal employment, she is immune from any claims
against her under the Federal Tort Claims Act, and there is federal question
18
See id.; see also Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 574, 124
S. Ct. 1920, 1926 (2004) (stating that Caterpillar’s holding was that a statutory defect, i.e.,
failure to meet the § 1441(a) requirement that the case be fit for federal adjudication at the
time the removal petition is filed, “did not require dismissal once there was no longer any
jurisdictional defect”).
19
See Grupo Dataflux, 541 U.S. at 572–73, 124 S. Ct. at 1925 (noting that Caterpillar
“broke no new ground” and merely applied a long-recognized exception to the “time-of-filing
rule” that jurisdiction must exist when the action is brought).
20
Caterpillar, 541 U.S. at 77, 117 S. Ct. at 477.
21
Id. (emphasis added).
7
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jurisdiction here.22 “The Westfall Act provides that, upon certification by the
Attorney General or his designated representative that the government
employee was acting within the scope of his employment at the time of the
allegedly tortious act, the United States may remove the action to federal court
and substitute itself as the defendant in the suit.” Counts v. Guevara.23 The
Attorney General’s certification in this case is not properly before us at this time.
Johnson sought removal based only on § 1442(a)(1). She never asserted in the
district court, either in her removal notice or post-remand order motions, that
removal was warranted by Westfall Act certification.24 Moreover, Rep. Johnson
apparently obtained the Attorney General’s certification only after the district
court’s remand order, and we generally will not enlarge the record to consider
evidence that was not before the district court. McIntosh v. Partridge.25 We
therefore decline to consider this issue and express no opinion on it.
APPEAL DISMISSED.
22
See 28 U.S.C. § 2679(d).
23
328 F.3d 212, 214 (5th Cir. 2003); see § 2679(d)(2).
24
See Brown v. Ames, 201 F.3d 654, 663 (5th Cir. 2000) (“To avoid being waived, an
argument must be raised to such a degree that the trial court may rule on it.”) (quotation
marks and citation omitted).
25
540 F.3d 315, 327 (5th Cir. 2008).
8