Jordan v. Carter

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

TERRELL D. JORDAN,

Plaintiff,

Case No. 1:23-cv-479

v.

JUDGE DOUGLAS R. COLE

SHAWN JAY Z CARTER, et al., Magistrate Judge Bowman

Defendants.

OPINION AND ORDER

The United States moves this Court (see Doc. 12) to reconsider an earlier

opinion and order, (Doc. 10, #77–78), in which the Court remanded this entire case to

the Hamilton County, Ohio, Court of Common Pleas under 28 U.S.C. § 1447(c).

Although the government declined the Court’s earlier invitation to weigh in on the

remand issue, it now claims the Court should have instead dismissed the government

as a defendant and only then remanded the remaining claims to state court, even if

the Court concluded it lacked jurisdiction over the entire dispute. After reviewing the

government’s newly tendered arguments, the Court finds that it erred in concluding

in the previous opinion and order that the removal here was attempted solely under

28 U.S.C. § 1442; rather, the Court now finds that the government also invoked the

Westfall Act, 28 U.S.C. § 2679. And given that additional basis for removal, the Court

had more options at its disposal in connection with remand than it previously

thought. Accordingly, the Court GRANTS the Motion for Reconsideration (Doc. 12),

and AMENDS its prior Order as follows: The Court DISMISSES WITHOUT

PREJUDICE any state-law tort claims Jordan raised against former President

Obama, which (as explained below) legally constitute Federal Tort Claims Act (FTCA)

claims against the United States, and then REMANDS all other claims to the

Hamilton County, Ohio, Court of Common Pleas.

BACKGROUND

The Court had detailed the factual background of this case in its prior Opinion

and Order. (Doc. 10, #62–65). But it will highlight the salient points here.

Jordan’s difficult-to-parse Complaint, which he filed in the Hamilton County

Court of Common Pleas, (Doc. 1-4), appears to allege that he has endured repeated

harassment and sexual assault at the hands of several prominent political and public

figures, (Doc. 3, #25–27)—a story he has told multiple times in other frivolous federal

suits. For this abuse, Jordan demands damages to the tune of millions of dollars from

each of the named Defendants, as well as an apparent protective order to avoid

further harassment and stalking. (Id. at #27).

One of the Defendants whom Jordan properly served, former President

Obama, removed this suit to federal court under the federal officer removal statute,

28 U.S.C. § 1442. (Doc. 1, #1 (declaring that “Defendant Former President Barack H.

Obama removes to this Court [this] civil action” only “[u]nder 28 U.S.C. § 1442”)).

That said, former President Obama’s Notice of Removal also generally cited the

Westfall Act, 28 U.S.C. § 2679, noting that the government (via authority delegated

by the Attorney General) would certify that he was acting in the scope of his

employment with the United States. (Doc. 1, #1–2). That July 28, 2023, certification

was filed in this Court as an attachment to former President Obama’s § 1442(a)(1)

Notice of Removal. (Doc. 1-5).

After removal, the government, citing this certification, sought to have the

United States “substituted as the party defendant[] [under] 28 U.S.C. § 2679(d)(1).”1

(Doc. 2). No party objected, and this Court recognized the United States as the

properly substituted party defendant for any tort claims against former President

Obama in its prior Opinion and Order. Jordan v. Carter, No. 1:23-cv-479, 2024 WL

804807, at *2 (S.D. Ohio Feb. 27, 2024). The United States then moved to dismiss the

Complaint in toto arguing in large part that the Court lacked subject matter

jurisdiction over the dispute because the allegations were “implausible, frivolous,

unsubstantial, and devoid of merit” and thus did not give rise to federal court

jurisdiction. (Doc. 6, #37, 39–40, 40 n.2). The Magistrate Judge agreed with the

government and recommended a dismissal of the entire Complaint under Federal

Rule of Civil Procedure 12(b)(1) for want of subject-matter jurisdiction. (Doc. 9, #57).

No party objected to the R&R.

But the Court had concerns. Because this case was removed from state court,

the Court noted that it was bound by the language in 28 U.S.C. § 1447(c), which

instructs that “[if] at any time before final judgment it appears that the district court

lacks subject matter jurisdiction” over a removed case, “the case shall be remanded.”

So given the government and the Magistrate Judge both agreed subject-matter

1 The Court notes that the United States’s substitution could not legally have been completed

under 28 U.S.C. § 2679(d)(1), which applies only to cases “commenced … in a United States

district court.” The substitution was actually effectuated under the directly applicable

provision: 28 U.S.C. § 2679(d)(2), which governs cases “commenced … in a State court.”

jurisdiction was wanting here at the time of removal, the plain language of this

provision appeared to require a remand of the entire cause, rather than a dismissal

as they suggested. The Court concluded that the parties should be allowed to weigh

in, given the issue had not been briefed. (2/6/24 Not. Order). Despite the express and

unequivocal invitation directed to all parties,2 no one responded. So the Court

evaluated the issue as follows: First, in line with the government’s argument, (Doc.

6, #40 n.2), and the R&R’s recommendation, (Doc. 9, #56), the Court found that

subject-matter jurisdiction was lacking at the time of removal on account of Jordan’s

fantastic allegations. Jordan, 2024 WL 804807, at *3. And then, given the Court

“before final judgment … [found it] lack[ed] subject matter jurisdiction,” it remanded

“the case” under § 1447(c)’s plain language. Jordan, 2024 WL 804807, at *6, *8.

2 The United States’s suggestion that the February 6, 2024, notation order was somehow

unclear that the Court was both contemplating the application of the plain language of

§ 1447(c) to remand the entire case to state court and asking the United States to file a brief

is without textual support. (Doc. 12, #84 n.5). Not only did the Court invite the United States

to respond by name, (2/6/24 Not. Order), but the notation order clearly stated that “it appears

the Court would be required to remand this matter to state court under the plain language

of 28 U.S.C. § 1447(c), which states that, if ‘the district court lacks subject matter

jurisdiction,’ then ‘the case shall be remanded.’” (Id.). This language discusses remand of the

entire case: the order expressly referenced the specific language of § 1447(c) requiring

remand of “the case” and used the word “matter,” which most naturally refers to ‘the entire

case’ when employed in a judicial context. Matter, Black’s Law Dictionary (11th ed. 2019) (“A

subject under consideration, esp. involving a dispute or litigation; CASE.”). So this notation

order clearly asked for all parties’ input on whether the entire case should be remanded.

Moreover, the Court’s inclusion of the words “including Movant United States of America”

could not reasonably carry a tacit suggestion that the United States should feel itself free not

to brief the question because the Court was somehow forecasting a specific outcome. (Doc. 12,

#84 n.5). Indeed, the only individuals to whom the Court could have been speaking at that

time were Jordan, former President Obama, and the United States. The most sensible

reading of that clause is to realize that the Court asked the one party most adversely

impacted by remand—the United States—to weigh in on the matter.

That said, the Court did not reach this result lightly. It noted that this

statutory remand command created something of a “jurisdictional quandary” for the

United States: observing that the government “c[ould not] be sued in state

court … but [also] c[ould not] exercise its statutorily granted authority to remove the

case to federal court and make it stick here through a successful termination of the

case in the government’s favor because the claims are wholly divorced from reality

and the federal court otherwise lacks subject-matter jurisdiction.” Id. at *4. Despite

this quandary, though, the Court found itself compelled by the plain language of the

statute, and Sixth Circuit caselaw that has made clear that § 1447(c) admits of no

futility exception, to remand when the court lacks subject-matter jurisdiction over a

removed cause. Id. at *6, *8. In line with this analysis, the Court remanded the case

to the Hamilton County Court of Common Pleas on February 27, 2024, where the case

now remains. (Doc. 11).

Twenty-eight days later, the United States, wise to the fact that the case was

now back in state court, belatedly weighed in on the remand question. (Doc. 12).

Citing Federal Rules of Civil Procedure 59(e) and 60(b), it moved the Court to

reconsider its decision to remand the entire case insofar as the United States was

concerned, so that the claims against it could be dismissed outright. (Id. at #81). The

United States advances two arguments: (1) the Court’s opinion and remand order

conflicts with Osborn v. Haley, 549 U.S. 225 (2007), and (2) the policy behind the

federal officer removal statute should compel the Court to dismiss the claims against

former President Obama despite the plain language of § 1447(c). (Id. at #86–94). On

May 21, 2024, Jordan filed (tardy) nominally styled objections to the government’s

motion, in which he added more fantastic and largely incoherent allegations to the

grand conspiracy discussed in his Complaint. (Doc. 13). But nothing in these

objections responded to the legal issues presented in the Court’s prior Opinion and

Order or the government’s motion. So the matter is ripe for the Court’s review.

LEGAL STANDARD

The Federal Rules of Civil Procedure do not specifically recognize motions for

reconsideration. Rather, such styled motions either constitute motions to alter or to

amend a judgment under Rule 59(e) or motions for relief from judgment under Rule

60(b). Pankiw v. Fed. Ins. Co., No. 1:04-cv-2334, 2007 WL 2344753, at *1 (N.D. Ohio

Aug. 15, 2007). The government cites both rules as the purported bases for its request

for the Court to reconsider its prior decision. (Doc. 12, #80). Courts interpret Rules

59(e) and Rule 60(b) narrowly. “A court may grant a Rule 59(e) motion to alter or [to]

amend if there is: (1) a clear error of law; (2) newly discovered evidence; (3) an

intervening change in controlling law; or (4) a need to prevent manifest injustice.”

Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005). Similarly, “[a] Rule 60(b)

motion is neither a substitute for, nor a supplement to, an appeal.” GenCorp, Inc. v.

Olin Corp., 477 F.3d 368, 373 (6th Cir. 2007) (collecting cases). “And the public policy

favoring finality of judgments limits the availability of relief under the rule.” Id. at

372 (cleaned up). Under Rule 60(b)(1), a Court may grant a party relief from judgment

for “mistake[s],” which “include[] a judge’s errors of law.” Kemp v. United States, 596

U.S. 528, 534 (2022).

The government argues only that the Court legally erred, so no other basis for

relief will be considered. (Doc. 12, #85–86). And although the government cites both

Rule 59(e) and 60(b) as the vehicles for obtaining such relief, courts have “long treated

Rule 60(b) motions filed within 28 days [of the entry of a district court’s judgment] as

Rule 59(e) motions.” Banister v. Davis, 590 U.S. 504, 520 n.9 (2020) (ellipsis omitted);

accord Braggs v. Perez, 42 F. App’x 678, 680 (6th Cir. 2002). Moreover, courts have

consistently understood that when “a motion [in substance] calls into question the

correctness of a judgment [it] should be treated as a motion under Rule 59(e), however

it is styled.” Clarendon Ltd. v. Foster, 7 F.3d 232, 1993 WL 339703, at *6 & n.5 (6th

Cir. 1993) (table) (observing that “[v]irtually every circuit court has followed th[at]

reasoning” and collecting cases). Because the government here has not sought to set

aside or to bring a collateral attack to a final judgment (which would be the relief

requested under Rule 60(b)) but has instead asked the Court to reevaluate and to

modify its remand order for a more favorable outcome, (see Doc. 12, #86), the Court

construes the motion for reconsideration as a Rule 59(e) motion for the Court to alter

or to amend its judgment. Banister, 590 U.S. at 518–19 (explaining the historical

origins of Rules 59(e) and 60(b) and noting that Rule 59(e) served as the vehicle for a

court to correct errors in its judgment within the confines of an existing dispute, while

Rule 60(b) permitted parties to mount collateral attacks to already final judgments).

So this Court is tasked with assessing whether there is a need to correct “a clear error

of law” that led to the prior remand order. Intera Corp., 428 F.3d at 620.

JURISDICTION UNDER 28 U.S.C. § 1447(d)

Before turning to the government’s arguments, the Court must address a

predicate jurisdictional question (ironically, as a prelude to other jurisdictional

questions). Can the Court entertain the government’s motion? This question arises

because Congress has largely stripped courts of jurisdiction to review “order[s]

remanding [] cases to the State courts from which [they were] … removed … on

appeal or otherwise.” 28 U.S.C. § 1447(d) (emphasis added). Courts have construed

that bar to “preclud[e] further reconsideration or review of a district court’s order

remanding a case back to state court” on the theory that “remand divests the district

court of any further jurisdiction over the case.” Bank of N.Y. Mellon v. Ackerman, 949

F.3d 268, 269 (6th Cir. 2020) (collecting cases).

That said, Congress has included a special carveout to this jurisdiction-

stripping provision: “an order remanding a case to the State court from which it was

removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal

or otherwise.” 28 U.S.C. § 1447(d). As the Supreme Court recently explained, “the

whole of [a district court’s remand] order bec[omes] reviewable” so long as the

removing party brought about removal pursuant to § 1442. BP P.L.C. v. Mayor & City

Council of Baltimore, 593 U.S. 230, 238 (2021). This review extends to all issues

encapsulated in the remand order (i.e., rejection of other bases for removal), not just

those specific to § 1442. Id. at 237–38. So while caselaw (before Congress amended

§ 1447(d) in 2011) had concluded that § 1447(d) had rendered “a remand for lack of

subject matter jurisdiction [pursuant to § 1447(c)] immune from review,” SHR Ltd.

P’shp v. SWEPI LP, 173 F. App’x 433, 437 (6th Cir. 2006), that rule does not govern

cases that fall in the special exception rendering the remand of § 1442 cases

reviewable. Cf. BP P.L.C., 593 U.S. at 243. Because former President Obama sought

removal here pursuant to 28 U.S.C. § 1442(a)(1), (Doc. 1, #1), the Court finds that

§ 1447(d) does not strip this Court of jurisdiction to review its prior remand order

under Rule 59(e). Mathieu v. Cazi, No. 23-cv-8663, 2023 WL 7277246, at *2 (S.D.N.Y.

Nov. 1, 2023); see Ackerman, 949 F.3d at 269–70.

With that jurisdictional issue resolved, the Court turns to the motion’s merits.

LAW AND ANALYSIS

The Court begins and ends with Osborn v. Haley, the case on which the

government principally relies in its motion. Osborn resolved what effect certification

under the Westfall Act, 28 U.S.C. § 2679(d)(2), which statute immunizes federal

officers from tort claims arising out of actions taken within the scope of their

employment, had on removal of a state-law cause of action. 549 U.S. at 230. There,

Osborn, an employee for a private company that contracted with the United States

Forest Service, sued Haley, a Forest Service officer, for tortiously interfering with

Osborn’s employment after she was fired for having insulted Haley at a meeting he

hosted at her workplace. Id. at 232. Osborn believed Haley induced her employer to

discharge her in retaliation for her asking the Department of Labor to investigate

Haley’s denial of her application for a trainee position with the Forest Service. Id. at

232–33. Osborn had sued in state court. Id. at 232. But the local United States

Attorney certified under the Westfall Act that Haley’s actions were within the scope

of his employment with the Forest Service, thereby leading the United States to

remove the cause under § 2679(d)(2). Id. at 233–34. After Osborn objected to the

United States’s substitution, the federal district court rejected the government’s

certification and remanded the cause to state court under § 1447(c) because it

concluded that jurisdiction was lacking given the § 2679(d)(2) certification failed. Id.

at 234–36.

The Supreme Court disagreed with the remand order. After reviewing the

Westfall Act’s language, particularly § 2679(d)(2)’s final clause treating the Attorney

General’s certification as “conclusive[] [of the] scope of office or employment for

purposes of removal,” the Supreme Court held that district courts cannot “remand

[the] removed action on the ground that the Attorney General’s certification was

erroneous.” Id. at 242. This is because the question (what the Supreme Court called

a “significant federal question”) whether Westfall Act immunity should be extended

to the defendant federal officer—an immunity put in issue by the mere filing of the

scope-of-employment certificate—itself constituted a valid federal question justifying

removal.3 Id. at 244–45. Thus, the district court’s eventual decision not to extend the

3 That said, the Supreme Court has suggested that there might be an exception to the rule

that the filing of a scope-of-employment certification conclusively raises a substantial federal

question supporting removal and a district court’s Article III subject-matter jurisdiction over

a Westfall Act cause. 549 U.S. at 250 n.14. It left open the question whether removal in the

first instance could be justified in “fanciful” situations where the certification decision had

no support in factual reality—in other words, instances when the certification was obviously

frivolous. Id. That posited caveat parallels the rule in other federal cases that claims raising

wholly insubstantial federal questions are deemed to lie beyond a court’s Article III subject-

matter jurisdiction. Cf. Hagans v. Lavine, 415 U.S. 528, 537–38 (1974) (explaining that the

mere invocation of a federal question does not support federal subject-matter jurisdiction if

the claim is “essentially fictitious,” “wholly insubstantial,” or “obviously frivolous” (citations

omitted)). But because Osborn did not expressly recognize such an exception to Westfall Act

certifications, the Court declines to break new ground and to determine whether such an

exception validly exists and, if so, the scope of such an exception.

officer such immunity because other evidence undermined the probative value of that

certification would not defeat the court’s subject-matter jurisdiction over the cause,

as a federal question existed at the time of removal (thereby giving rise to jurisdiction

over that federal question and supplemental jurisdiction over the remaining issues

in the case). Id.

To expand on that a bit, the Osborn Court applied the well-established rule

that a party’s ultimate failure to state a federal cause of action (i.e., the officer fails

to prove his entitlement to Westfall Act immunity) does not mean he failed properly

to invoke the district court’s subject-matter jurisdiction in the first instance. Cf. Steel

Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89 (1998) (“It is firmly established in

our cases that the absence of a valid (as opposed to arguable) cause of action does not

implicate subject-matter jurisdiction.”). In light of this rule, the Osborn Court

effectively concluded that the Attorney General’s invocation of Westfall Act immunity

via scope-of-employment certification raised a valid federal question permitting

removal. The Court then held that the federal district court should retain the case to

exercise supplemental jurisdiction over the state tort law claim even after resolving

the immunity question against the officer. Osborn, 549 U.S. at 244–45. Namely, the

district court’s “invest[ment of] time and resources to resolve the pivotal [Westfall

Act] scope-of-employment contest” meant that “considerations of judicial economy,

convenience and fairness to litigants [would] make it reasonable and proper for a

federal court to proceed to final judgment” on the tort claim against that defendant.

Id. (cleaned up).

In sum, Osborn v. Haley stands for the rule that the federal court can validly

exercise jurisdiction over a case involving a state-law tort claim against a federal

officer removed under the Westfall Act because the Attorney General’s scope-of-

employment certification constitutes competent evidence raising a valid federal

question. Further, under Osborn, a federal court should maintain jurisdiction over

that case until final judgment is rendered on the claim supporting removal. That is

to say, once the court resolves the tort claims against the officer that had supported

removal in the first place, Osborn does not displace the normal rules governing

federal courts’ remand of matters over which they lack subject-matter jurisdiction. 28

U.S.C. §§ 1367(c), 1447(c).

With Osborn v. Haley’s holding clear, does the Court need to revisit the remand

order it entered previously? The short answer is yes.

The Court had held that former President Obama removed this case under only

28 U.S.C. § 1442(a)(1), Jordan, 2024 WL 804807, at *2, which would not implicate

Osborn, see 549 U.S. at 235 n.4, 249 n.13. But the Court now finds that its prior

reading of the Notice of Removal was too narrow. The Court had focused on the clear

language in the Notice of Removal stating that “[u]nder 28 U.S.C. § 1442, Defendant

Former President Barack H. Obama removes to this Court a civil action originally

filed in the Hamilton County Court of Common Pleas, Ohio.” (Doc. 1, #1). But the

document also contains additional ambiguous language: in particular, it later

employs the passive voice to suggest that the “action is removable under 28 U.S.C.

§§ 1442(a)(1) and 2679(d)(2).” (Id. at #1–2 (emphasis added)). The problem with

passive voice generally is that it hides the actor’s identity, and that poses particular

issues in the context of Westfall Act cases. That is because under § 2679(d)(2), the

federal officer cannot remove. Rather one entity, and only one entity, has that

authority: the United States acting through the Attorney General. 28 U.S.C.

§ 2679(d)(2) (instructing that an applicable cause “shall be removed … by the Attorney

General,” when the United States seeks removal under the Westfall Act (emphasis

added)); see Osborn, 549 U.S. at 249, 252 n.17 (concluding based on the language in

§ 2679(d)(3), which employs materially similar wording to § 2679(d)(2), that “the

Westfall Act gives the named defendant no right to remove … [as] [t]hat right is

accorded to the Attorney General only” and contrasting Westfall Act removal power,

which is reserved for the United States, with removal under § 1442(a)(1), which

officers can personally invoke (emphasis added)).

Against that backdrop, confusion arose here because the government has

suggested in all its papers that neither the Attorney General nor the United States

sought to effect removal—only former President Obama did. (Doc. 1, #1 (“Under 28

U.S.C. § 1442, Defendant Former President Barack H. Obama removes to this Court

a civil action originally filed in the Hamilton County Court of Common Pleas, Ohio.”);

Doc. 6, #38 (United States’s acknowledging that “[f]ormer President Obama removed

the case”); Doc. 12, #81 (“Former President Obama removed the case to this Court.”));

see also Notice of Filing a Notice of Removal in Federal Court at 1, Jordan v. Carter,

A 2302239 (Hamilton Cnty. Ct. Com. P. July 28, 2023) [hereinafter Notice of Filing],

https://perma.cc/8NEP-JWRM (“Defendant Former President Barack H. Obama has

filed a Notice of Removal in the United States District Court for the Southern District

of Ohio, Western Division.” (footnote omitted)).4 These filings suggest that while the

United States Attorney’s Office filed the Notice of Removal and other documents on

former President Obama’s behalf, it acted as his counsel in doing so, rather than as

counsel for another entity.5 But if that is so, if President Obama had initiated the

removal, only § 1442, and not § 2679(d)(2), provided a basis for that removal. 28

U.S.C. § 2679(d)(2); see Osborn, 549 U.S. at 252 n.17. And to complicate matters

further, after mentioning § 2679(d)(2) in passing in the Notice of Removal, the

government failed to reference the provision again in either the corresponding notice

it filed in state court, which state-court notice “effect[s] the removal” under 28 U.S.C.

§ 1446(d), or in its notice of substitution. Notice of Filing, supra, at 1 (suggesting

former President Obama’s removal was effectuated “[pursuant to 28 U.S.C. §§ 1442

and 1446” and failing to cite § 2679(d)(2) as another basis for removal); (Doc. 2, #20

(citing a different provision of the Westfall Act)).

Taken together, these procedural quirks created the impression that the

United States did not intend—or at the very least failed to provide clear notice of its

intention—to seek removal under § 2679(d)(2). But on the other hand, certain clues

point another way, as well. As already noted, the United States used passive voice in

4 As this document was filed in the Hamilton County Court of Common Pleas in this cause,

the Court may take judicial notice of it. Dates v. HSBC, 1:24-cv-81, 2024 WL 860918, at *1

n.1 (S.D. Ohio Feb. 29, 2024) (quoting Granader v. Pub. Bank, 417 F.2d 75, 82 (6th Cir. 1969)).

5 This contrasts, for example, with the notice of removal in Osborn v. Haley, in which the

government made clear that the removing party was the United States, not the officer. Notice

of Removal by the United States of America at 3, Osborn v. Haley, No. 5:03-cv-192 (W.D. Ky.

Aug. 20, 2003), ECF No. 1 (“[T]he United States requests removal of the above-styled action

to the United States District Court pursuant to 28 U.S.C. §§ 1442, 1446 and 2679.”).

the Notice of Removal (leaving open the possibility that some actor other than former

President Obama might be seeking removal). (Doc. 1, #1–2). Beyond that, it included

a certification regarding the scope of employment, (Doc. 1-5), and otherwise

referenced § 2679 in the relevant filings, (Doc. 1); Notice of Filing, supra, at 1 (citing

28 U.S.C. § 2679(d)(1) in a footnote to suggest that substitution would occur under

that provision after removal). So while it is a close call, upon further review the Court

concludes that the government did just enough to signal that it removed this cause

under § 2679(d)(2). That said, the Court urges the government to take greater care in

drafting its notices of removal so that they clearly identify the basis on which removal

is occurring.

In any event, with the understanding that the United States sought to remove

this case under § 2679(d)(2), the Court agrees that Osborn v. Haley governs.

Accordingly, the Attorney General’s certification raises a valid federal question

permitting this Court to exercise subject-matter jurisdiction over the Westfall Act

immunity issue and to resolve the related state-law tort claims. As to the Westfall

Act question, no party challenged the United States’s substitution, so it is the proper

defendant for the state-law tort claims raised against former President Obama.

Osborn, 549 U.S. at 229 (“The Westfall Act accords federal employees absolute

immunity from common-law tort claims arising out of acts they undertake in the

course of their official duties.” (emphasis added) (cleaned up)).6 And that converts

6 As the Westfall Act authorizes substitution only for claims sounding in tort, Osborn, 549

U.S. at 229; Abernathy v. Kral, 779 F. App’x 304, 308 n.2 (6th Cir. 2019), the Court makes

clear that its prior decision could not (and therefore did not) substitute the United States as

Jordan’s tort law claims against former President Obama into FTCA claims against

the United States. 28 U.S.C. § 2679(b)(1) (noting that the “remedy against the United

States [for its employee’s torts] provided by [the FTCA] … is exclusive of any other

civil action or proceeding for money damages by reason of the same subject matter”).

Whether Jordan’s tort claims are framed as merely common law claims or

disguised FTCA claims, the Court’s prior determination regarding their frivolousness

still stands. Jordan, 2024 WL 804807, at *3. It remains true today, just as it did when

the Court ruled previously, that the Complaint raises “fanciful allegations that rise

to the level of the irrational or the wholly incredible.” Id. (cleaned up). And such

factually and legally frivolous claims fail to raise a substantial federal question, such

that the Court lacks federal-question jurisdiction over them. Id. But Osborn’s

command that the Court adjudicate, rather than remand, these FTCA claims causes

the Court to deviate slightly at this juncture from its prior opinion and order—this

finding that the Court lacks federal-question jurisdiction over the FTCA claims does

not result in a wholesale remand. Rather, the Court resolves the legally and factually

frivolous FTCA claims that supported removal by dismissing them under the Prison

Litigation Reform Act, which instructs that when a plaintiff proceeds in forma

pauperis (IFP), see Jordan, 2024 WL 804807, at *1 n.2, “the court shall

dismiss … [any claim raised that is] frivolous.” 28 U.S.C. § 1915(e)(2)(B)(i); see

Denton v. Hernandez, 504 U.S. 25, 32–33 (1992) (explaining that under the then-

the defendant for any common-law contract claims Jordan raised against former President

Obama. As to those claims, the Court must evaluate whether to assert supplemental

jurisdiction under 28 U.S.C. § 1367. See infra note 7. And as explained below, the Court

declines to do so. See infra note 8.

applicable statute governing IFP complaints, “frivolous” claims are those that are

“clearly baseless,” “fanciful,” “fantastic,” or “delusional,” which descriptors mirror the

standard governing a federal court’s determination that a complaint fails to raise a

substantial federal question); cf. Hagans v. Lavine, 415 U.S. 528, 536–38 (1974)

(employing similar verbiage to define frivolous federal claims that do not properly

invoke a court’s federal-question jurisdiction). Though dismissals under

§ 1915(e)(2)(B)(i) for frivolousness have been deemed not to be dismissals on the

merits, Denton, 504 U.S. at 34; cf. Davis v. Butler Cnty., 658 F. App’x 208, 213 & n.5

(6th Cir. 2016), the Court may nonetheless dismiss such claims with prejudice if it

finds that they are “irremediably defective.” Lomax v. Ortiz-Marquez, 590 U.S. 595,

602 (2020). As Jordan’s claims are of just that sort, the Court dismisses the tort claims

against former President Obama (i.e., the disguised FTCA claims against the United

States) with prejudice.

But once the claims underlying the government’s removal are adjudicated via

a dismissal without prejudice, the United States is no longer a party to the suit and

the Court is left with a Complaint filled with other factually and legally frivolous

state-law claims. Jordan, 2024 WL 804807, at *3. As the Court explained above,

Osborn’s holding about retaining jurisdiction applies only to the extent that the initial

tort claims implicating the Westfall Act remained outstanding. Seeing as those tort

claims, which served as the basis for removal here, have been fully adjudicated, the

Court may resolve the remaining (state-law) claims as it normally would: by

considering whether to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c).7

7 The government’s Osborn v. Haley argument suffices to invoke the Court’s federal-question

jurisdiction, which thereby permits the Court to exercise supplemental jurisdiction over any

other claims arising “from a common nucleus of operative fact.” United Mine Workers of Am.

v. Gibbs, 383 U.S. 715, 725 (1966); 28 U.S.C. § 1367. So technically, the Court need not turn

to the government’s alternate policy argument that § 1442(a)(1) can be construed broadly to

foreclose remands under the plain language of § 1447(c), (see Doc. 12, #90–94). But the Court

chooses to do so briefly because it holds that it is proper to decline to exercise supplemental

jurisdiction over the remaining state-law claims, including the contract claims purportedly

raised against former President Obama, see infra note 8.

For starters, it is well-settled that a federal officer’s invoking § 1442(a)(1) does not alone

suffice to create federal jurisdiction over claims he seeks to remove. Rather he must include

averments in his notice of removal of an anticipated federal defense, Mesa v. California, 489

U.S. 121, 136 (1989), and must establish a nexus between the “charged conduct and asserted

official authority.” Jefferson Cnty. v. Acker, 527 U.S. 423, 431 (1999) (citation omitted);

Abernathy, 779 F. App’x at 307. Though the government acknowledges this caselaw governs

here, (Doc. 12, #90), it nonetheless fails to identify what federal defense former President

Obama personally raised in his Notice of Removal justifying his decision to remove this cause

under § 1442(a)(1). (Id. at #91 (explaining that “the United States … raised several federal

defenses” it held as the sovereign after removal and after moving to be substituted in place

of former President Obama)). That bars him from relying on § 1442(a)(1) to support this

Court’s jurisdiction over any of the remaining claims following the United States’s dismissal

as a party. Mesa, 489 U.S. at 123–24. And because the officer must substantiate the nexus

between the charged conduct and his assertion of official authority, the allegations and the

basis for removal are inherently intertwined questions. Abernathy, 779 F. App’x at 307. But

as the Court has thoroughly explained, Jordan, 2024 WL 804807, at *3, any inquiry into the

charged conduct in the Complaint (and by implication its connection to the assertion of official

authority) requires sifting through a myriad of “allegations [that] … are totally implausible”

and therefore beyond the ken of federal subject-matter jurisdiction. Apple v. Glenn, 183 F.3d

477, 479 (6th Cir. 1999) (citing Hagans, 415 U.S. at 536–37).

As a result, the Court still finds merit in its prior opinion holding that such implausibility,

in the absence of any other jurisdictional hook, requires remand under the plain language

§ 1447(c). As a result, the Court adheres to that reasoning now insofar as it concludes that

§ 1442(a)(1) would not otherwise support the Court’s subject-matter jurisdiction over any of

the remaining non-FTCA claims. Jordan, 2024 WL 804807, at *3–*6. In other words, setting

aside the Court’s procedural mistake in overlooking the United States’s removal under the

Westfall Act, nothing in the policy arguments the government now posits suggests the Court

otherwise erred in concluding that remand under § 1447(c) was compelled by the lack of

subject-matter jurisdiction, to the extent that § 1442(a)(1) was the basis for removal. The

Court already considered the practical implication of that holding and rejected policy as an

improper basis for disregarding the plain text of § 1447(c). Id. at *5–*6; accord Moodie v. The

Ship Phoebe Anne, 3 U.S. (3 Dall.) 319, 319 (1796) (Ellsworth, C.J.) (“Suggestions of policy

For supplemental jurisdiction to lie, the state-law claims must arise “from a

common nucleus of operative fact.” United Mine Workers of Am. v. Gibbs, 383 U.S.

715, 725 (1966); Kubala v. Smith, 984 F.3d 1132, 1137 (6th Cir. 2021) (applying Gibbs

to claims that hitched a ride to federal court with other validly removed claims). But

that requires the Court to find that the state-law claims raised have some factual

overlap with the claims that give rise to federal jurisdiction (here the FTCA claims)—

either because the claims arise out of the same incident or otherwise have a legally

significant factual nexus. Kubala, 984 F.3d at 1138 (concluding that supplemental

jurisdiction would not lie when plaintiff’s sexual harassment and First Amendment

claims shared no “fact other than his employment status”). What about Jordan’s

claims here? The answer (as should not be surprising given what has been explained

above and previously) is it is wholly unclear. The claims are legally and factually

frivolous primarily because the allegations are inscrutable. Jordan, 2024 WL 804807,

at *1, *3; (Doc. 12, #81 n.1). And that makes any inquiry into whether the claims

raised (to the extent anyone could identify what those claims are) turn on a common

nucleus of operative facts a largely fruitless exercise. That doubt about whether these

claims fall within the Court’s supplemental jurisdiction alone suffices to require a

and conveniency cannot be considered in the judicial determination of a question of right: the

Treaty with France, whatever that is, must have its effect.”); see generally Gilstrap v.

Sushinati LLC, No. 1:22-cv-434, 2024 WL 2197824, at *6 & n.6 (S.D. Ohio May 15, 2024)

(observing that the rule that “policy considerations cannot and should not substitute for a

conclusion grounded in the statute’s text and structure” is a “principle [that] is so strongly

embedded in our caselaw that it seems to rear its head in at least one Supreme Court opinion

every term” (cleaned up)). Simply put, the Court’s prior finding that removal under

§ 1442(a)(1) could not support its subject-matter jurisdiction over the non-FTCA claims still

stands—accordingly, the Court may exercise jurisdiction over the remaining state-law claims

only if supplemental jurisdiction is warranted under § 1367.

remand for want of subject-matter jurisdiction under the plain language of 28 U.S.C.

§ 1447(c). See Coyne v. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999) (“All doubts

as to the propriety of removal are resolved in favor of remand.”).

But even assuming for sake of argument that § 1367 permits the Court to

exercise supplemental jurisdiction over the remaining state-law claims, it finds that

the relevant factors of “judicial economy, convenience, fairness, and comity” all favor

declining to exercise supplemental jurisdiction and remanding the remainder of the

case to state court. Musson Theatrical, Inc. v. Fed. Express Corp., 89 F.3d 1244, 1254

(6th Cir. 1996) (citation omitted). For starters, this case is being analyzed only at the

screening stage—even before service of nearly all of the Defendants, which creates a

strong presumption favoring state court resolution of the state-law claims. Id. at

1255. Only “unusual circumstances” will overcome this presumption, and none are

present. Id. (citation omitted). By virtue of the fact that remand occurred only at the

screening stage, almost no federal resources have been expended. For similar reasons,

no party would be prejudiced by a remand given how little litigation has occurred up

to this point—a state court can easily pick up the cause at this moment in time. Id.

at 1256 (noting that resubmission of already written motions following remand and

the minor delay related to state court resolution of such motions did not mean

unusual circumstances requiring the federal court to assert supplemental jurisdiction

over the remaining state-law claims existed). And given the Court has essentially

evaluated only whether there is federal jurisdiction over the claims raised (rather

than has dug into their merits), there is no risk of duplication of proceedings.

Retaining these claims would therefore not serve the interests of judicial economy,

fairness, or convenience. Id.

Finally, and most importantly, comity weighs heavily into this calculus. Only

state law matters are left. And the Court still finds merit in its prior determination

that the claims and allegations are so fanciful that they would not otherwise fall

within the ambit of federal subject-matter jurisdiction. Jordan, 2024 WL 804807, at

*3. So there is precious little to commend federal resolution of what is left of this

fantastical case. Comity (and the Court’s attendant doubts as to whether

supplemental jurisdiction can properly be exercised over the remaining matters)

strongly supports holding that the remaining claims “are best left for state courts to

answer in the first instance.” Kowall v. Benson, 18 F.4th 542, 549 (6th Cir. 2021). So

the Court concludes that even if it could exercise supplemental jurisdiction, it should

decline to do so under § 1367(c) and send the matter back to state court.8

8 The United States’s attempt to assume former President Obama’s liability for those claims

does nothing to change this analysis. (Doc. 6, #39–40). As explained, the Court has authority

over those claims only to the extent that they fall within its supplemental jurisdiction and

warrant its discretionary assertion of that jurisdiction: the contract claims are not wrapped

up in the Westfall Act analysis, see supra note 6, and § 1442(a)(1), by not supporting the

removal of this cause, does not provide a viable alternate avenue for the Court to assert

jurisdiction over them, see supra note 7. But to establish the Court’s supplemental

jurisdiction over the claims, the Court must conclude that the fantastic and almost

indecipherable claims in the Complaint arise from the same nucleus of operative fact as the

FTCA claims otherwise raised—an exercise on par with tilting at windmills. Jordan, 2024

WL 804807, at *1, *3. As the Court cannot meaningfully establish the validity of exercising

supplemental jurisdiction over such fanciful contract claims, it must follow the plain text of

§ 1447(c) and remand for want of subject-matter jurisdiction—the same holding the Court

reached above for all the other non-FTCA claims.

And even if supplemental jurisdiction could be asserted, that the Westfall Act does not apply

means those contract claims against former President Obama are no different than the other

non-FTCA claims in the Complaint: state-law claims raised against private individuals. So

any suggestion (based solely on argument, rather than on allegations or other record

Altogether, the Court recognizes upon fresh review that the government

inartfully sought removal under the Westfall Act. Because its opaque notice of

removal caused the Court to overlook the statutory removal mechanism employed,

the Court did not address (and therefore improperly failed to apply) the holding in

Osborn v. Haley. With the basis for removal now established, this legal error is clear

and therefore the Court must correct it by amending the previous remand order.

Intera Corp., 428 F.3d at 620–21. So, for the reasons explained, the Court rights the

ship by first dismissing the common law tort claims raised against former President

Obama, which are disguised FTCA claims against the United States, and then by

remanding the remaining state-law claims to state court (regardless whether remand

evidence) that former President Obama cannot be held liable on any contract he impliedly

made with Jordan, (see Doc. 6, #39–40), turns on the merits of any contract claim alleged and

any attendant agency issues—pure state-law questions. E.g., Versatile Helicopters, Inc. v.

City of Columbus, 548 F. App’x 337, 340–41 (6th Cir. 2013) (explaining the differing rules of

liability for agents and principals in contracts and holding what rule applies turns on factual

issues that must be submitted to the jury). This is bolstered by the fact that Jordan’s

allegations against former President Obama about the $20 million the President allegedly

owes him do not in any way suggest that Jordan implicitly demands that money from the

United States: Jordan refers to President Obama as the “Former President,” his allegations

related to the money do not provide specific dates that would otherwise suggest that the

alleged discussion occurred during former President Obama’s presidency, and Jordan

attaches personal correspondence from former President Obama dated after he left Office

implying that contractual liability (if any) would stem from the former President’s personal

actions post federal employment. (Doc. 3, #25–26, 28). Those details, which relate to the

merits, confirm that the contract claims against former President Obama (to the extent that

they exist) are in the same boat as all the other state-law claims raised: as part of a case that

has barely moved past the pleading stage and involves solely state-law matters, they should

be resolved by a state court, principally as a matter of comity. Musson, 89 F.3d at 1254–56.

Simply put, that there may be a defense on the merits to the state-law contract claims raised

against former President Obama does not change the Court’s supplemental jurisdiction

calculus. Like all other non-FTCA claims raised in this case, all relevant factors applicable

to the § 1367(c) analysis point to remand, especially given the fantastic nature of the

Complaint gives the Court pause as to whether the remaining claims properly fall within the

scope of its supplemental jurisdiction.

results from the application of § 1447(c) because the Court lacks supplemental

jurisdiction over those claims or from the Court’s declining to exercise supplemental

jurisdiction over them under § 1367(c)).

CONCLUSION

In light of the government’s briefing clarifying the basis for removal, the Court

concludes it must correct its previous error. As a result, the Court GRANTS the

Motion for Reconsideration (Doc. 12). Accordingly, pursuant to 28 U.S.C. § 1447(d),

which authorizes the Court’s review of its February 27, 2024, remand order, (Doc.

10), the Court AMENDS that Order as follows: The Court DISMISSES WITH

PREJUDICE any state-law tort claims Jordan raised against former President

Obama, which legally constitute FTCA claims against the United States, and

REMANDS all other claims to the Hamilton County, Ohio, Court of Common Pleas.

The Court DIRECTS the Clerk to TRANSMIT forthwith a copy of this

Opinion and Order to the Hamilton County, Ohio, Court of Common Pleas to be filed

on the corresponding state court docket in this matter.

SO ORDERED. + |

DATE DOUGLAS R. COLE .

UNITED STATES DISTRICT JUDGE

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