United States Court of Appeals
Fifth Circuit
F I L E D
In the United States Court of Appeals
For the Fifth Circuit July 13, 2005
_________________________ Charles R. Fulbruge III
Clerk
No. 05-30511
_________________________
CHARTER SCHOOL OF PINE GROVE, INC.,
Plaintiff-Appellee
v.
ST HELENA PARISH SCHOOL BOARD,
Defendant-Appellant
_________________________________________________________________
CHARTER SCHOOL OF PINE GROVE, INC.,
Plaintiff-Appellee
v.
ST HELENA PARISH SCHOOL BOARD,
Defendant-Appellant
--------------------------
Appeals from the United States District Court for the
Middle District of Louisiana, Baton Rouge
--------------------------
Before JOLLY, HIGGINBOTHAM, and SMITH, Circuit Judges.
PER CURIAM:
Charter School of Pine Grove, Inc. requests that we dismiss
the St. Helena Parish School Board’s appeal of a district court’s
remand order returning a lawsuit filed by the Charter School to
Louisiana state court. Because we are persuaded that the School
Board failed to plead facts in its notice of removal implicating
the jurisdiction of the federal courts under 28 U.S.C. § 1443, we
dismiss the appeal.
The facts are straightforward. The Charter School sued the
School Board in Louisiana state court alleging that the Board
violated state law when it voted to rescind its prior approval of
a contract allowing the Charter School to operate as a Type I
Charter School under Louisiana law.1 The School Board removed the
suit to the Federal District Court for the Middle District of
Louisiana on grounds that the court had original jurisdiction under
28 U.S.C. §§ 1651, 1367, and 1331. The Board alleged that it was
a defendant in an ongoing desegregation case over which the
district court had jurisdiction. The Board claimed that the
Charter School’s lawsuit raised questions regarding the Board’s
compliance with various orders and a consent decree entered in the
desegregation case, giving rise to federal jurisdiction.
Following removal, the Charter School moved to remand to state
court. The federal district court granted this motion, noting that
it “fail[e]d to discern any federal question on the face of the
state court petition.”2 The School Board appealed, urging for the
first time that the Charter School’s lawsuit was removable under
§ 1443. The Charter School filed a motion to dismiss.
We may not review “decisions to remand when based on a
perceived lack of subject matter jurisdiction, even if the district
1
See LA. REV. STAT. ANN. § 17:3971 et seq. (West 2001).
2
Charter Sch. of Pine Grove, Inc. v. St. Helena Parish Sch. Bd., No. 05-
182-D (M.D. La. Apr. 18, 2005) (order granting motion to remand).
2
court erroneously believes it lacks jurisdiction.”3 However, we
may review an order to remand based on lack of subject matter
jurisdiction when the case remanded was removed pursuant to 28
U.S.C. § 1443.4 Section 1443 provides:
Any of the following civil actions or criminal
prosecutions, commenced in a State court may be removed
by the defendant to the district court of the United
States for the district and division embracing the place
wherein it is pending:
* * * * * *
(2) For any act under color of authority derived from
any law providing for equal rights, or for refusing
to do any act on the ground that it would be
inconsistent with such law.5
The Supreme Court has held that § 1443 “confers a privilege of
removal only upon federal officers or agents and those authorized
to act with or for them in affirmatively executing duties under any
federal law providing for equal civil rights.”6 In addition, we
have observed that § 1443 “allows state officials to remove civil
rights actions against them to federal court when they
demonstrate . . . a colorable conflict between state and federal
law leading to [their] refusal to follow plaintiff’s interpretation
of state law because of a good faith belief that to do so would
3
In re Bissonnet Invs. L.L.C., 320 F.3d 520, 524 (5th Cir. 2003) (citing
28 U.S.C. § 1447(d)).
4
28 U.S.C. § 1447(d).
5
28 U.S.C. § 1443.
6
City of Greenwood v. Peacock, 384 U.S. 808, 824 (1966).
3
violate federal law.”7
As an initial matter, we must determine whether we may
consider the School Board’s argument that removal was proper under
§ 1443. Ordinarily, arguments not raised in the district court
cannot be asserted for the first time on appeal.8 “However, an
argument is not waived on appeal if the argument on the issue
before the district court was sufficient to permit the district
court to rule on it.”9 We have held that the “[r]ules of notice
pleading apply with as much vigor to petitions for removal as they
do to other pleadings.”10 Thus, the School Board’s notice of
removal was sufficient to raise § 1443 as a ground for removal if
it provided the district court with facts from which removal
jurisdiction under this section could be determined.11
In its notice of removal, the School Board alleged that the
Charter School’s lawsuit raised “issues and questions concerning
the meaning, interpretation and application” of orders entered in
7
Alonzo v. City of Corpus Christi, 68 F.3d 944, 946 (5th Cir. 1995)
(quoting White v. Wellington, 627 F.2d 582, 587 (2d Cir. 1980)) (quotation
omitted).
8
See In re Liljeberg Enters., Inc., 304 F.3d 410, 427 n.29 (5th Cir.
2003).
9
Id.
10
Brown v. City of Meridian, 356 F.2d 602, 606 (5th Cir. 1966); see Allman
v. Hanley, 302 F.2d 559, 562 (5th Cir. 1962) (“The absence of detailed grounds
setting forth the basis for removal is not fatal to defendant’s right to
remove.”).
11
See 14C CHARLES ALAN WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE § 3733 (3d ed.
1998) (noting that a notice of removal “should be sufficient if the court is
provided the facts from which removal jurisdiction can be determined” (emphasis
added)).
4
the desegregation case. The Board noted that the court had entered
a consent decree allowing it to operate a Type I Charter School
subject to the restrictions contained in the desegregation orders.
The Board asserted that it voted to rescind the Charter School’s
contract in response to a dispute between the parties involving the
Board’s compliance with the consent order, and the Board’s concerns
that operation of the Charter School would obstruct efforts to
comply with the desegregation orders. In short, the Board claims
that it rescinded the contract because the Charter School’s
operations would have placed the Board in conflict with its
obligation to abide by the desegregation orders.
In Bohlander v. ISD Number One of Tulsa County,12 the Tenth
Circuit held that a suit brought by patrons of a school district
seeking to enjoin the implementation of a federally approved plan
to eliminate racial discrimination and segregation in Tulsa County
schools was properly removed by the school district under § 1443.
The court found that the school district was acting under color of
law to carry out a federally designed and approved desegregation
plan, and that the lawsuit seeking to enjoin the district’s
activities fit squarely within the confines of § 1443. Thus,
Bohlander supports the proposition that a direct attack upon a
school board’s implementation of a desegregation plan creates
federal subject matter jurisdiction under § 1443.
12
420 F.2d 693 (10th Cir. 1969).
5
Here, the Charter School’s lawsuit is not a direct attack on
the desegregation orders or the consent decree. Rather, the suit
alleges only that the School Board acted contrary to state law when
it voted to rescind its contract with the Charter School. A
analogous set of facts were addressed by the Seventh Circuit in
County Collector of Winnebago County v. O’Brien.13 In O’Brien, the
court held that a school district could not employ § 1443 to remove
a lawsuit objecting to taxes that it had levied. The school
district claimed that the taxes were levied as a result of a
consent decree reached in a federal desegregation lawsuit that
required the school to fund remedial programs. The district
further opined that the lawsuit would directly interfere with its
obligation under the consent decree as it would dry up its source
for funds necessary to implement the remedial programs.
The court held that removal was not proper under § 1443. The
court noted that the district was not explicitly ordered to take
the actions for which it was sued--namely, levying taxes. The
court then observed:
Of course, a court does not often spell out, in minute
detail, each step that a party needs to follow to satisfy
the court's order. In addition to having a duty to follow
the specific directives of the court, a party may fairly
be said to have an ancillary “duty” to take those actions
that are necessary to comply with the explicit commands
of the court. Thus, a defendant sued for acts explicitly
mandated or necessarily required by court-ordered school
desegregation plans can remove under the color of
authority clause. But where the plaintiff complains of
13
96 F.3d 890 (7th Cir. 1996).
6
actions that were collateral to, rather than necessary
concomitants of, the defendant's specific obligations
under a court order, the defendant cannot claim that it
was sued for affirmatively executing court-ordered duties
and remove under § 1443(2).14
The defendant bears the burden of establishing its right to
removal under § 1443.15 Thus, it falls to the School Board to
identify an explicit or ancillary court-ordered duty to rescind the
Charter School’s contract. The pleadings in this case reveal no
such duty. Rather, they indicate only in conclusory fashion that
the contract termination was undertaken as a means by which the
School Board could eliminate interference or obstruction with its
obligations under the desegregation orders. This language is
insufficient to assert a factual basis for § 1443 removal.
Accordingly, the Charter School’s motion to dismiss the appeal is
GRANTED.
14
Id. at 898 (citations and footnotes omitted).
15
See Texas v. Gulf Water Benefaction Co., 679 F.2d 85, 86 (5th Cir.
1982).
7