# Nash v. Little Rock Housing Authority

> District Court, E.D. Arkansas · September 20, 2021

URL: https://www.frixlaw.com/law-library/cases/10005960

## Case

- **Court:** District Court, E.D. Arkansas
- **Decided:** September 20, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10005960

## How later opinions describe it (automated extraction)

- stating that the elimination of the federal defense requirement from the federal officer removal statute “would eliminate the substantive Art[icle] III foundation of § 1442(a)(1) and unnecessarily present grave constitutional problems”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION

MARSHALL L. NASH PLAINTIFF

v. Case No. 4:20-cv-1320-LPR

LITTLE ROCK HOUSING AUTHORITY
d/b/a MHA, and
LITTLE ROCK BOARD OF
COMMISSIONERS DEFENDANTS

ORDER

Pending before the Court is Plaintiff Marshall L. Nash’s Motion to Remand.1 The Little
Rock Housing Authority d/b/a Metropolitan Housing Alliance and the Little Rock Housing
Authority Board of Commissioners have responded.2 On September 14, 2021, the Court held a
hearing on the Motion. For the reasons that follow, the Court now GRANTS the Motion to
Remand.

1 Pl.’s Mot. to Remand (Doc. 5). Mr. Nash, acting pro se, also seeks costs and attorney’s fees pursuant to 28 U.S.C.
§ 1447(c). Id. at 16. That statute provides that “[a]n order remanding [a] case may require payment of just costs
and any actual expenses, including attorney fees, incurred as the result of the removal.” 28 U.S.C. 1447(c)
(emphasis added). Mr. Nash is a licensed attorney, but that does not entitle him to fees. The Supreme Court has
pointed out that “the word ‘attorney’ assumes an agency relationship. . . . .” Kay v. Ehler, 499 U.S. 432, 435–36
(1991). Of course, Mr. Nash cannot be an agent of himself. So such a relationship is not present here. Also, in
Kay, the Supreme Court held that pro se plaintiffs are not entitled to recover attorney’s fees under 42 U.S.C. §
1988. 499 U.S. at 438. The Court can find no principled reason distinguishing the Supreme Court’s holding with
respect to a civil rights statute and the fee shifting provision of § 1447(c). Thus, Mr. Nash will not receive fees for
representing himself. In any event, the governing precedent and the language of § 1447(c) make crystal clear that
I have the discretion to order fees and costs where a defendant “lack[s] an objectively reasonable basis for seeking
removal.” Martin v. Franklin Cap. Corp., 546 U.S. 132, 141 (2005). That does not mean I must order costs and
fees where a defendant “lack[s] an objectively reasonable basis for seeking removal.” Id. I choose to exercise my
discretion by not awarding costs and fees here. I do not believe that Defendants were acting in bad faith, using
gamesmanship, or seeking to delay this case. Given the relative paucity of caselaw expounding upon what makes
an asserted federal defense “colorable,” it was worth the old college try.
2 Defs.’ Resp. to Mot. to Remand (Doc. 10).
Background and Procedural History
On October 15, 2020, Mr. Nash filed his pro se Complaint in Arkansas state court.3 Mr.
Nash is an Arkansas resident and worked for Defendants (MHA and the Board) between 2014 and
the date of his resignation, April 12, 2019.4 MHA is an Arkansas corporation organized pursuant

to Arkansas Code Annotated section 14-169-201 et seq., having its principal place of business in
Arkansas.5 The Board comprises five members “whose stated role is to establish goals, approve
policy and budgets, and provide general direction to” the MHA.6
Mr. Nash alleges defamation.7 Specifically, Mr. Nash alleges that Defendants told federal
investigators that Mr. Nash “refused to attend” a meeting, was suspended and placed on unpaid
administrative leave, and that he resigned while on unpaid leave.8 Mr. Nash alleges that all of
those statements are false.9 Mr. Nash alleges that federal investigators included the allegedly false
statements in an official report.10 Mr. Nash alleges that “the statement regarding Plaintiff’s
employment status of [a]dministrative [l]eave or suspension was printed in articles for public
consumption,” and that this false statement “is memorialized into perpetuity via the internet.”11

According to Mr. Nash, Defendants’ statements and their subsequent disseminations by third
parties injured Mr. Nash’s reputation.12

3 Pl.’s Compl. (Doc. 2).
4 Id. ¶ 4.
5 Id. ¶ 2; Defs.’ Resp. to Mot. to Remand (Doc. 10) ¶ 5.
6 Pl.’s Compl. (Doc. 2) ¶ 3.
7 See id.
8 Id. ¶¶ 5, 7–9, 26.
9 Id. ¶¶ 10–12, 30.
10 Id. ¶ 27.
11 Id. ¶¶ 29, 30.
12 Id. ¶ 31.
On November 9, 2020, Defendants removed the case to this Court.13 Defendants rely on
their relationship with the U.S. Department of Housing and Urban Development (“HUD”) to get
into federal court. Defendants assert that “they were authorized by federal law and MHA’s
contract with HUD to act for a federal officer, namely HUD, in executing duties under federal
law.”14 Defendants also say that HUD “direct[s] and control[s] how the MHA administer[s]

housing benefits through its contracts with MHA through a detailed and comprehensive federal
regulatory scheme and regularly-issued guidance by HUD.”15
Defendants assert that a former MHA employee, Dana Arnette, filed a “whistleblower
reprisal complaint through the HUD Office of the Inspector General.”16 In that whistleblower
complaint, Ms. Arnette said that she “was fired for her disclosure that [Mr. Nash], who was serving
as a Special Advisor to the Board, was neglecting his job duties, thus amounting to a gross waste
of HUD funds and gross mismanagement of HUD’s contract with the MHA.”17 This
whistleblower complaint, Defendants assert, triggered an investigation by the OIG.18 Investigators
questioned a Board member about Ms. “Arnette’s report of HUD funds being misused through

[Mr. Nash’s] failure to perform his job and about [Mr. Nash’s] termination of [Ms.] Arnette
following her report of the misuse.”19 Defendants say that the Board member’s responses
constitute the allegedly defamatory statements.20

13 Defs.’ Notice of Removal (Doc. 1).
14 Id. ¶ 28.
15 Id.
16 Id. ¶ 12.
17 Id.
18 Id. ¶ 15.
19 Id.
20 See id. ¶ 17.
The OIG report containing the allegedly defamatory statements was completed on June 21,
2019.21 Sometime later, some of these statements in the OIG report were published online by a
media outlet.22 For instance, the media outlet reported that Defendants “voted unanimously on
April 9 to put Nash, who was serving as the ‘special adviser’ to the board, on administrative
leave.”23 Defendants state that “the published information that is the basis for Plaintiff’s alleged

harm was obtained by the news outlet through the Freedom of Information Act, 5 U.S.C. § 552.”24
Defendants’ primary argument is that this Court has jurisdiction over this case under the
federal officer removal statute, 28 U.S.C. § 1442(a)(1).25 In a nutshell, Defendants argue that they
made the allegedly defamatory statements while acting under the color and direction of HUD.26
As such, Defendants contend that federal officer removal is proper.
Alternatively, Defendants say that this Court has subject matter jurisdiction under 28
U.S.C. § 1331 (federal question jurisdiction).27 In a nutshell, Defendants argue that multiple
“serious federal interest[s]” are implicated by Mr. Nash’s complaint and thus give rise to federal
question jurisdiction.28 For instance, Defendants assert that a serious federal interest “exists in

interpreting whether a public entity receiving and charged with distributing federal funds is liable
for statements made while participating in a federal investigation.”29

21 Ex. A to Defs.’ Mot. to Dismiss (Doc. 4-1) at 3.
22 Ex. 2 to Pl.’s Compl. (Doc. 2) at 6.
23 Id.
24 Defs.’ Notice of Removal (Doc. 1) ¶ 39.
25 Id. ¶¶ 1, 20.
26 See id. ¶¶ 1, 34–35.
27 Id.
28 Id. ¶¶ 49–51.
29 Id. ¶ 49.
Discussion
Mr. Nash disputes both asserted bases for subject matter jurisdiction.30 Defendants bear
the burden of establishing that removal was proper.31

Federal Officer Removal

The federal officer removal statute “grants independent jurisdictional grounds over cases
involving federal officers where a district court otherwise would not have jurisdiction.”32 The
statute allows a defendant to remove a state court action “brought against 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
….’”33 Defendants’ removal is proper only “if [Defendants], in carrying out the ‘acts’ that are the
subject of [Mr. Nash’s Complaint], [were] ‘acting under’ any ‘agency’ or ‘officer’ of ‘the United
States.’”34 That Defendants are not per se a federal agency or federal officers does not foreclose
federal officer removal. “Government contractors fall within the terms of the federal removal
statute, at least when the relationship between the contractor and the Government is an unusually
close one involving detailed regulation, monitoring, or supervision.”35
The Eighth Circuit instructs that “[f]our elements are required for removal under §
1442(a)(1):

30 Pl.’s Mot. to Remand (Doc. 5) at 8, 13–14. The Court’s reasons for granting the Motion to Remand with respect
to federal officer removal are different than the reasons argued by Mr. Nash. This is not a problem because the
Court has an independent duty to determine whether it has subject matter jurisdiction.
31 See Green v. Ameritrade, Inc., 279 F.3d 590, 596 (8th Cir. 2002) (“The party opposing remand has the burden of
establishing federal subject-matter jurisdiction.”).
32 Johnson v. Showers, 747 F.2d 1228, 1229 (8th Cir. 1984).
33 Watson v. Phillip Morris Cos., Inc., 551 U.S. 142, 145 (2007) (emphasis in original) (quoting 28 U.S.C. §
1442(a)(1)) .
34 Id. at 146 (quoting 28 U.S.C. § 1442(a)(1)).
35 Id. at 153.
(1) a defendant has acted under the direction of a federal officer, (2) there was a
causal connection between the defendant’s actions and the official authority, (3) the
defendant has a colorable federal defense to the plaintiff’s claims, and (4) the
defendant is a “person,” within the meaning of the statute.36

Even assuming the other three elements are met, Defendants have not presented a colorable federal
defense.
In their Notice of Removal, Defendants said they have “a colorable defense of sovereign
immunity as [a] government contractor.”37 The Notice of Removal didn’t explain the defense or
cite any authority supporting the defense. In their Response to the Motion to Remand, Defendants
didn’t even use the phrase “sovereign immunity” much less provide any reasoned argument on
why it would be applicable here.38 And in their Motion to Dismiss, Defendants did not actually
assert this defense.39 At the motion hearing, Defendants conceded that they do not have a colorable
sovereign immunity defense.40
In their Notice of Removal, Defendants said they have a colorable federal defense arising
out of the Privacy Act of 1974, 5 U.S.C. § 552a.41 The Notice of Removal said that “Defendants
. . . have a colorable defense of preemption” under that Act, “which governs the use of the

36 Jacks v. Meridian Resource Co., LLC, 701 F.3d 1224, 1230 (8th Cir. 2012). The “colorable federal defense”
element has been read into the statute by the Supreme Court in an attempt to avoid the serious constitutional
problem that would be presented if the statute did not include such a requirement. See Mesa v. California, 489
U.S. 121, 137 (1989) (stating that the elimination of the federal defense requirement from the federal officer
removal statute “would eliminate the substantive Art[icle] III foundation of § 1442(a)(1) and unnecessarily present
grave constitutional problems”). Mine is not to reason why, mine is but to do or die.
37 Defs.’ Notice of Removal (Doc. 1) ¶ 38.
38 See Defs.’ Resp. to Pl.’s Mot. to Remand (Doc. 10) at 7 (stating that “Defendants have asserted federal defenses
regarding privilege, immunity, and official justification”).
39 See Defs.’ Mot. to Dismiss (Doc. 4) at 8 (suggesting an immunity defense arising under Arkansas statutory law).
40 Sept. 14, 2021 Hr’g Tr. at 17. At the motion hearing, the Court asked Defendants whether they were still pressing
sovereign immunity as a colorable federal defense. Id. at 15. Defendants said that they had not “focused on” this
defense. Id. at 16. In response to the Court’s comment that it didn’t seem like Defendants had a good derivative
immunity argument, Defendants’ counsel said, “I wouldn’t disagree[,] which is in all candor . . . one reason why I
didn’t focus on that really in the papers.” Id. at 7.
41 Defs.’ Notice of Removal (Doc. 1) ¶ 39; see also Sept. 14, 2021 Hr’g Tr. at 11.
information contained within the ‘Report of Investigation’ . . . .”42 That is the sum of Defendants’
contention. Defendants did not explain how the Privacy Act preempts Mr. Nash’s defamation
claim. Aside from generally referencing the statute, Defendants did not point to any statutory
authority supporting the defense. Defendants did not cite one case suggesting the availability of

such a defense. Defendants’ Response to Mr. Nash’s Motion to Remand is no different. Indeed,
the Privacy Act does not appear in the section of Defendants’ Response addressing colorable
federal defenses.43 In their Motion to Dismiss, Defendants did not make any reference to the
Privacy Act.44 At the motion hearing, Defendants generally cited the Act and said “that there is a
federal defense and a specific federal question to determine whether a public entity charged with
distributing federal funds is liable for a statement made [while] participating in a mandatory federal
investigation.”45 However, with unusual and appreciated candor, Defendants admitted that this is
a “novel argument,” lacking any statutory or caselaw support.46 It’s more than novel. It’s entirely
unsupported by any authority or legal argument.
Finally, in their Notice of Removal, Defendants said they have a “colorable defense that

the published information that is the basis of Plaintiff’s alleged harm was obtained” through the
Freedom of Information Act.”47 That is all Defendants said on this “defense.” Defendants again
generally referenced the FOIA statute but did not cite any specific statutory provision supporting
the existence of this defense. Defendants did not cite any caselaw either. Defendants did add a

42 Defs.’ Notice of Removal (Doc. 1) ¶ 39.
43 Defs.’ Resp. to Pl.’s Mot. to Remand (Doc. 10) at 6–7.
44 See Defs.’ Mot. to Dismiss (Doc. 4).
45 Sept. 14, 2021 Hr’g Tr. at 11.
46 Id. at 12–13.
47 Defs.’ Resp. to Pl.’s Mot. to Remand (Doc. 10) at 7; see also Sept. 14, 2021 Hr’g Tr. at 13 (stating that FOIA
provides “a colorable defense . . . to determine whether an entity like the housing authority can be liable or whether
they have a colorable defense to defamation following the distribution of information that’s made pursuant to a
FOIA request . . . .”).
drop of substance to their FOIA argument in their Response to Mr. Nash’s Motion to Remand.
Defendants said that their “compliance with FOIA law acts as a defense to a defamation claim
because Defendants were justified in the release of that information.”48 Defendants cited no
specific statutory provisions to support this contention. Defendants cited no caselaw supporting

this contention. At the motion hearing, Defendants also candidly characterized this argument as
“novel.”49 Again, it’s more than novel. It’s entirely unsupported by any authority or legal
argument. None of these “novel” arguments presents a colorable federal defense.50
Defendants have not established the availability of a colorable federal defense. It is true
that the Eighth Circuit does not require that a federal defense “be clearly sustainable in order to
support removal under § 1442(a)(1).”51 But this can’t mean that Defendants need only vaguely
and generally raise broad immunity concepts and federal statutes to meet their burden of
establishing a colorable federal defense. Such a capacious interpretation would vitiate this element
entirely. 52 And it would conflict with precedents like Mesa v. California.53

48 Defs.’ Resp. to Pl.’s Mot. to Remand (Doc. 10) at 7.
49 Sept. 14, 2021 Hr’g Tr. at 14.
50 Defendants did present other “novel” arguments in their Notice of Removal. Defendants said that they “have a
colorable defense that the alleged defamatory statements were privileged communications made during a federal
investigation.” Defs.’ Notice of Removal (Doc. 1) ¶ 41. As with Defendants’ other defenses, they cite no authority
for this proposition. Defendants also said that they “have a colorable defense that the information contained in the
Report that is the basis of Plaintiff’s complaint was erroneously included by a federal OIG investigator.” Id. ¶ 42.
No support or developed argument for this proposition either. Defendants also raised Mr. Nash’s failure to exhaust
administrative remedies as a colorable federal defense. Still, no support or developed argument.
51 Jacks, 701 F.3d at 1235.
52 Defendants never once mention a federal defense in their Motion to Dismiss. See Defs.’ Mot. to Dismiss (Doc. 4).
In that Motion, Defendants present extensive coverage of their “‘qualified privilege to publish a defamatory
statement in good faith to protect one’s interest . . . .’” Id. at 8 (quoting Richmond v. Southwire Co., 980 F.2d 518,
520 (8th Cir. 1992)). This may be true, but the problem for Defendants is that this qualified privilege is a creature
of Arkansas state law. Defendants also assert a right to immunity. Id. at 10. But like their qualified-privilege
argument, the right to immunity Defendants assert in their Motion to Dismiss arises under Arkansas law––not
federal law. See id. (citing Ark. Code Ann. § 21-9-301).
53 489 U.S. at 121.
No case speaks directly to what “colorable” means in this specific context. But there is
caselaw interpreting that word in a different removal-remand context. In analyzing whether a
plaintiff has fraudulently joined a non-diverse defendant under 28 U.S.C. § 1446, the Eighth
Circuit has looked to see whether a “colorable” cause of action exists against the nondiverse
defendant.54 “[T]hat is, if the state law might impose liability on the [nondiverse] defendant under

the facts alleged . . . .”55 In that context, the Eighth Circuit appears to define “colorable” as
“describ[ing] an alleged cause of action that is reasonable, but speculative.”56 Perhaps put a bit
differently, a defense is “colorable” if it has “a reasonable basis in law and fact”––whether or not
it would ultimately succeed.57 Defendants have not come close to meeting this standard. There is
nothing to suggest any of the asserted federal defenses are colorable. No caselaw support. No
statutory support. No treatise support. No law review support. And no developed argument from
counsel as to why heretofore unknown federal defenses should be recognized.

Federal Question Jurisdiction

As mentioned, Defendants also ground their removal on federal question jurisdiction.58
Under 28 U.S.C. § 1331, federal district courts have “original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United States.” Relatedly, “any civil action brought
in a State court of which the district courts of the United States have original jurisdiction,” can be
removed to federal court.59 Under Eighth Circuit precedent, “the question whether a claim ‘arises

54 Filla v. Norfolk S. Ry. Co., 336 F.3d 806, 810 (8th Cir. 2003).
55 Id.
56 Id. at 810 n.10.
57 See Knudson v. Systems Painters, Inc., 634 F.3d 968, 980 (8th Cir. 2011) (for fraudulent-joinder, a defendant must
establish that a plaintiff’s claim against a nondiverse defendant has “no reasonable basis in law and fact”).
58 Pl.’s Notice of Removal (Doc. 1) ¶ 44.
59 28 U.S.C. § 1441(a).
under’ federal law must be determined by reference to the ‘well-pleaded complaint.’”60 The
Supreme Court has explained that the well-pleaded complaint rule allows federal jurisdiction “only
when a federal question is presented on the face of the plaintiff’s properly pleaded complaint.”61
In the Eighth Circuit, this means that a plaintiff (like Mr. Nash) can avoid federal jurisdiction “by
exclusive reliance on state law.”62 On the other hand, “[f]ederal jurisdiction exists if the well-

pleaded complaint establishes that either federal law creates the cause of action or that the
plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal
law.”63
Defendants rely on this latter contingency.64 Defendants do not (for good reason) argue
that federal law creates Mr. Nash’s cause of action. Instead, Defendants ground their federal
question argument on a “longstanding, if less frequently encountered, variety of federal ‘arising
under’ jurisdiction,” which allows for federal question jurisdiction over “state-law claims that
implicate significant federal issues.”65 The Supreme Court’s decision in Grable & Sons Metal
Products, Inc. v. Darue Engineering & Manufacturing set a high bar for defendants seeking to

base federal question jurisdiction on a state law claim. Grable said that federal question
jurisdiction may exist if a plaintiff’s “state-law claim necessarily raise[s] a stated federal issue,
actually disputed and substantial, which a federal forum may entertain without disturbing any

60 Great Lakes Gas Transmission Ltd. P'ship v. Essar Steel Minn. LLC, 843 F.3d 325, 329 (8th Cir. 2016) (quoting
Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808 (1986)).
61 Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987).
62 Baker v. Martin Marietta Materials, Inc., 745 F.3d 919, 923 (8th Cir. 2014) (quotations omitted).
63 Great Lakes Gas, 843 F.3d at 329.
64 See Defs.’ Notice of Removal (Doc. 1) ¶ 45 (acknowledging that Mr. Nash’s claim arises under state law).
65 Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312 (2005); Defs.’ Notice of Removal
(Doc. 1) ¶ 45.
congressionally approved balance of federal and state judicial responsibilities.”66 Under Eighth
Circuit precedent, [t]his rule applies only to a ‘special and small category’ of cases that present ‘a
nearly pure issue of law, one that could be settled once and for all and thereafter would govern
numerous … cases.’”67

Grable does not support federal question jurisdiction in this case. To prevail on a
defamation claim under Arkansas law, a plaintiff must prove: “(1) the defamatory nature of the
statement of fact; (2) that statement’s identification of or reference to the plaintiff; (3) publication
of the statement by the defendant; (4) the defendant’s fault in the publication; (5) the statement’s
falsity; and (6) damages.”68 None of the just-recited elements presents “‘a nearly pure issue of
[federal] law . . . .’”69 In Grable, the Supreme Court held that federal question jurisdiction existed
when a plaintiff’s state law quiet title action depended upon whether an IRS notice of a tax sale
complied with a federal statute.70 Here, on the other hand, no federal law determines the outcome
of Mr. Nash’s defamation claim. It follows, then, that this claim has not necessarily “raise[d] a
stated federal issue . . . .”71 Defendants therefore fail on the first step of the Grable test.

Defendants more or less repackage their colorable-federal-defense arguments to try and fit
them into the Grable framework. In their Notice of Removal, Defendants said that the “‘Report
of Investigation[,]’ which is the subject of Plaintiff’s complaint was governed by the Privacy Act

66 Grable, 545 U.S. at 314.
67 Great Lakes Gas, 843 F.3d at 331 (quoting Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 699–700
(2006) (citation and quotation marks omitted)).
68 Dodson v. Allstate Ins. Co., 345 Ark. 430, 444, 47 S.W.3d 866, 876 (2001).
69 Great Lakes Gas, 843 F.3d at 331 (quoting Empire Healthchoice, 547 U.S. 699–700 (citation and quotation marks
omitted).
70 Grable, 545 U.S. at 310–11.
71 Id. at 314.
of 1974.”72 Defendants also said that the media outlet obtained the report through the Freedom of
Information Act.73 Defendants generally referenced these statutes to argue that “a serious federal
interest exists in interpreting whether a public entity receiving and charged with distributing
federal funds is liable for information released by a federal agency in violation of” or pursuant to
either of these statutes.74 Defendants did not develop this argument. They cited no specific

statutory sections, nor did they suggest that the interpretation of a specific statutory section was
necessary. They did not provide some complete-preemption argument or any other developed
preemption argument. Defendants’ cursory references to federal statutes are not enough.
Moreover, it is doubtful that these statutes (if they have any bearing at all) allowed Defendants to
knowingly lie about Mr. Nash. And whether the report was properly released has no bearing on
the defamation claim here.
Defendants’ other arguments are similarly bare. In their Notice of Removal, Defendants
suggest that Mr. Nash’s Complaint raises a federal question because Mr. Nash alleged that
“Defendants’ blatantly false statements to Federal Investigators is a federal crime punishable by

imprisonment, and it stands [to] reason that the victim of such crimes (Plaintiff) should be
compensated . . .”75 In context, this bit of hyperbole is not an embedded federal claim. Mr. Nash
is not volunteering to federally prosecute Defendants. Mr. Nash’s defamation claim does not
depend on Mr. Nash proving that Defendants violated any federal law.
Finally, in their Notice of Removal, Defendants said that federal question jurisdiction is
proper because their “tortious acts arose out of their participation in a federal investigation under

72 Defs.’ Notice of Removal (Doc. 1) ¶ 48.
73 Id.
74 Id. Defendants repeated this argument without reference to any statute. Id. ¶ 49.
75 Pl.’s Compl. (Doc. 2) ¶ 42; see also Defs.’ Notice of Removal (Doc. 1) ¶ 46.
41 US.C. § 4712 and while Defendants were carrying out their duties as required by the HUD
regulations.”’° But what does that have to do with Mr. Nash’s defamation claim? For federal
question jurisdiction, the Supreme Court makes clear that “a case may not be removed to federal
court on the basis of a federal defense, including the defense of pre-emption, even if the defense
is anticipated in the plaintiff's complaint, and even if both parties concede that the federal defense
is the only question truly at issue.”’’ Defendants have failed to establish federal question
jurisdiction.
Conclusion
For the foregoing reasons, Mr. Nash’s Motion to Remand is GRANTED. The Clerk of the
Court is directed to immediately transfer this case to the Circuit Court of Pulaski County, Arkansas.
The Clerk is then directed to close this case.
IT IS SO ORDERED this 20th day of September 2021.

_ □□
LEE P. RUDOFSKY
UNITED STATES DISTRICT JUDGE

76 Def.’ Notice of Removal (Doc. 1) § 47.
7 Caterpillar, 482 U.S. at 393.
13

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10005960. Public record. Not legal advice.