# Edinburg United Police Officers Association v. City of Edinburg, Texas

> District Court, S.D. Texas · July 29, 2020

URL: https://www.frixlaw.com/law-library/cases/10673587

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** July 29, 2020
- **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/10673587

## How later opinions describe it (automated extraction)

- holding that a complaint must raise an “essential element of a federal right” to present a federal question on its face
- recognizing a First Amendment associational right and cause of action for retaliation for a public employee’s right to associate with a union

## Opinion text

UNITED STATES DISTRICT COURT July 29, 2020
SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk
MCALLEN DIVISION

EDINBURG UNITED POLICE §
OFFICERS ASSOCIATION, §
§
Plaintiff, §
VS. § CIVIL ACTION NO. 7:20-cv-00137
§
CITY OF EDINBURG, TEXAS, §
§
Defendant. §

OPINION AND ORDER

The Court now considers “Plaintiff, Ediburg [sic] United Police Officers Association’s
Motion to Remand,”1 Defendant’s response,2 and Plaintiff’s reply.3 After considering the motion,
record, and relevant authorities, the Court DENIES Plaintiff’s motion to remand.
I. BACKGROUND AND PROCEDURAL HISTORY

This is a labor dispute. In 2018, City of Edinburg, Texas, police officers represented by
Plaintiff Edinburg United Police Officers Association executed an agreement, pursuant to Texas
Local Government Code Chapter 142,4 controlling the “wages, salaries, rates of pay, hours of
work, and other terms and conditions” for employees of the Edinburg Police Department.5 When
a new chief of police began to pursue changes in the police department in 2019, the parties’
relationship soured.6 Plaintiff alleges that the police chief made personnel decisions, such as
suspending certain police officers or assigning them to undesirable shifts, based on their
opposition to the chief’s decisions or because of the police officers’ membership with Plaintiff

1 Dkt. No. 4.
2 Dkt. No. 7.
3 Dkt. No. 8.
4 See TEX. LOC. GOV’T CODE ANN. §§ 142.051–.068 (West 2020).
5 Dkt. No. 1-1 at 2, ¶ 6.
6 See id. at 3–5, ¶¶ 11–20.
Association, which voted against the chief’s move to reopen the 2018 agreement to make certain
lateral hires.7 For example, the police chief reassigned Plaintiff Association Secretary Eric
Salazar and Association Trustee Arnoldo Ysquierdo from their favorable position in the Criminal
Investigations Division (with better pay,8 regular shifts, office space, and no need to wear
uniforms) to regular patrol, “thereby causing them to lose the additional pay and favorable
working conditions provided by Art. 19(5) of the Agreement.”9

Within days after the police chief’s personnel reassignment, Eric Salazar and Arnoldo
Ysquierdo filed grievances pursuant to the 2018 agreement.10 Both claim that their reassignment
“was done [in part] for the illegal purpose of attempting to chill [their] right to freedom of
association, guaranteed by the First Amendment to the Constitution of the United States.”11
Plaintiff alleges the police chief failed to respond or arbitrate pursuant to the agreement.12 On
April 9, 2020, Plaintiff filed a complaint in the 93rd Judicial District Court of Hidalgo County,
Texas, bringing claims against Defendant City for declaratory judgment and breach of contract
and seeking a permanent injunction compelling Defendant City to arbitrate Plaintiff’s claims
pursuant to the 2018 agreement.13

Defendant asserts that it was served on May 4, 2020, and removed on May 28th.14 The
parties now disagree on whether this case is properly before this Court. The motion to remand to
state court is ripe for consideration.
II. DISCUSSION

7 Id.
8 See TEX. LOC. GOV’T CODE ANN. § 143.042(b) (West 2020) (“The governing body of a municipality may
authorize assignment pay for fire fighters and police officers who perform specialized functions in their respective
departments.”).
9 Id.
10 Dkt. No. 1-1 at 6, ¶¶ 21–23.
11 Id. ¶¶ 21, 23.
12 Id. ¶¶ 25–27.
13 Id. at 8–10, ¶¶ 34–42.
14 Dkt. No. 1 at 1, ¶¶ 3–4.
a. Legal Standard

It is a “well-settled principle that litigants can never consent to federal subject matter
jurisdiction, and the lack of subject matter jurisdiction is a defense that cannot be waived.”15
District courts have limited jurisdiction and the authority to remove an action from state to
federal court is solely conferred by the Constitution or by statute.16 While the Court has
jurisdiction to determine its jurisdiction,17 it cannot exercise any “judicial action” other than
dismissal when the Court lacks jurisdiction.18 “The removing party bears the burden of showing
that federal jurisdiction exists and that removal was proper.”19 When the removing party claims
federal question jurisdiction under 28 U.S.C. §§ 1331 or 1441, the removing party must
demonstrate that the Court will be exercising its jurisdiction over a civil action “arising under the
Constitution, laws, or treaties of the United States.”20 “The defendant bears the burden of
demonstrating that a federal question exists. A federal question exists if there appears on the face
of the complaint some substantial, disputed question of federal law.”21 “[A] right or immunity
created by the Constitution or laws of the United States must be an element, and an essential one,
of the plaintiff's cause of action.”22 “[R]emoval statutes are to be strictly construed against

15 Gonzalez v. Guilbot, 255 F. App’x 770, 771 (5th Cir. 2007) (citing Coury v. Prot, 85 F.3d 244, 248 (5th
Cir.1996)); see 28 U.S.C. § 1447(c).
16 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994).
17 United States v. Ruiz, 536 U.S. 622, 628 (2002) (“[I]t is familiar law that a federal court always has jurisdiction to
determine its own jurisdiction.”).
18 Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998).
19 Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002); accord McNutt v. Gen. Motors
Acceptance Corp., 298 U.S. 178, 189 (1936).
20 28 U.S.C. § 1331; see 28 U.S.C. § 1441(a) (“Except as otherwise expressly provided by Act of Congress, any civil
action brought in a State court of which the district courts of the United States have original jurisdiction, may be
removed by the defendant or the defendants, to the district court of the United States for the district and division
embracing the place where such action is pending.”).
21 In re Hot-Hed Inc., 477 F.3d 320, 323 (5th Cir. 2007) (footnote omitted) (quotation omitted); accord Bernhard v.
Whitney Nat’l Bank, 523 F.3d 546, 552 (5th Cir. 2008) (holding that a complaint must raise an “essential element of
a federal right” to present a federal question on its face).
22 Rivet v. Regions Bank of La., 522 U.S. 470, 475 (1998) (quoting Gully v. First Nat’l Bank, 299 U.S. 109, 112
(1936)).
removal; doubts as to removal are resolved in favor of remanding the case to state court.”23
Specifically, the Court will resolve all legal and factual issues, doubts, and ambiguities in favor
of remand,24 because the exercise of jurisdiction over a removed case “deprives a state court of a
case properly before it and thereby implicates important federalism concerns.”25
b. Analysis

Defendant points to specific paragraphs of Plaintiff’s complaint as the basis for federal
question jurisdiction, which the Court will recount for purposes of analysis:
39. In their grievances, Eric Salazar and Arnoldo Ysquierdo both alleged that they
believed that their removal from the assignments to CID [Criminal Investigations
Division] were done to chill their expression of Freedom of Association
guaranteed by the First Amendment to the Constitution of the United States. If
Plaintiff's application is not granted, harm is imminent because Eric Salazar,
Arnoldo Ysquierdo, and the membership of Edinburg United will lose the right to
be free from discrimination based on association guaranteed by Article 21 of the
Agreement and by the First Amendment to the Constitution of the United States.

40. The harm is irreparable because there is no measure of damages that will
adequately compensate Edinburg United and its members, including Eric Salazar
and Arnoldo Ysquierdo, for the loss of their right to be free from discrimination
based on association guaranteed by Article 21 of the Agreement and by the First
Amendment to the Constitution of the United States.26

23 Tebon v. Travelers Ins. Co., 392 F. Supp. 2d 894, 898 (S.D. Tex. 2005) (Jack, J.) (citing Shamrock Oil & Gas
Corp. v. Sheets, 313 U.S. 100 (1941) & Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000)); see Bosky
v. Kroger Tex., LP, 288 F.3d 208, 211 (5th Cir. 2002) (quotation omitted) (“[R]emoval statutes are to be construed
strictly against removal and for remand.”).
24 Lorenz v. Tex. Workforce Comm’n, 211 F. App’x 242, 245 (5th Cir. 2006) (citing Guillory v. PPG Indus., 434
F.3d 303, 308 (5th Cir. 2005)); see also Rico v. Flores, 481 F.3d 234, 239 (5th Cir. 2007) (“[T]he district court is
‘obliged to resolve any contested issues of material fact, and any ambiguity or uncertainty in the controlling state
law, in [the plaintiff’s] favor.’” (alteration in original) (quoting Griggs v. State Farm Lloyds, 181 F.3d 694, 699 (5th
Cir. 1999))).
25 Frank v. Bear Stearns & Co., 128 F.3d 919, 922 (5th Cir. 1997); see also Steel Co. v. Citizens for a Better Env't,
523 U.S. 83, 94 (1998); Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1988) (citations omitted) (“As a
preliminary matter, we emphasize that the burden of establishing federal jurisdiction is placed upon the party
seeking removal. Moreover, removal jurisdiction raises significant federalism concerns and we must therefore
strictly construe removal jurisdiction.”); B., Inc. v. Miller Brewing Co., 663 F.2d 545, 548–49 (5th Cir. 1981)
(“Where a federal court proceeds in a matter without first establishing that the dispute is within the province of
controversies assigned to it by the Constitution and statute, the federal tribunal poaches upon the territory of a
coordinate judicial system, and its decisions, opinions, and orders are of no effect. . . . Thus, the trial court must be
certain of its jurisdiction before embarking upon a safari in search of a judgment on the merits.”).
26 Dkt. No. 1-1 at 9, ¶¶ 39–40, quoted in Dkt. No. 1 at 3, ¶¶ 13–14.
Defendant also points to specific paragraphs of Plaintiff’s complaint wherein Plaintiff alleges
that Eric Salazar’s and Arnoldo Ysquierdo’s grievance alleged that the police chief’s
reassignment of the officers “was done for the illegal purpose of attempting to chill his right to
freedom of association, guaranteed by the First Amendment to the Constitution of the United
States.”27 The grievance form Plaintiff submitted to the American Arbitration Association also
alleges “violation of the First Amendment.”28 Defendant asserts that Plaintiff’s allegations are an
attempt “to bring a federal 1st Amendment claim by proxy on behalf of individual employees in
the guise of a contract violation.”29
Plaintiff moves to remand, arguing that “[t]he only thing Edinburg United is attempting
to do is to obtain an order compelling the City to comply with the ‘Contract Dispute Procedures’
found in Article 26 of the Agreement.”30 Plaintiff first argues that Article 26 “does not authorize
individual bargaining unit members to pursue their own grievances beyond the initial filing.”31
However, Article 26 actually states the opposite, providing that any non-contractual dispute and
all matters not covered by the agreement are not subject to the agreement’s dispute procedure or
arbitration.32 Plaintiff next emphasizes the parts of the complaint that allege violation of the
agreement, but ignores that the complaint also clearly alleges violation of the First
Amendment.33 Both federal and state claims may be asserted simultaneously; the assertion of one
does not demote assertion of another. Plaintiff next argues that the real “thrust” of its complaint
is the police chief’s alleged violation of the agreement, the state law cause of action, and
Plaintiff’s prayer for a permanent injunction to compel arbitration.34 Even if Plaintiff is correct,
the only question for the Court is whether the face of the complaint alleges a federal cause of
action or a disputed question of federal law, which the complaint does by alleging violation of

27 Dkt. No. 1-1 at 6, ¶¶ 21, 23, quoted in Dkt. No. 1 at 2–3, ¶¶ 11–12.
28 Dkt. No. 4-3 at 2.
29 Dkt. No. 1 at 3, ¶ 16.
30 Dkt. No. 4 at 4, ¶ 13.
31 Id. at 5, ¶ 15.
32 Dkt. No. 4-1 at 18, ¶ E.
33 See Dkt. No. 4 at 5–6, ¶¶ 17–18.
34 Dkt. No. 4 at 7, ¶¶ 21–22.
the First Amendment to the federal Constitution.*° “The federal constitutional right asserted
would exist even in the absence of this contractual provision. In other words, the contractual
provision neither adds to, nor detracts from, the... constitutional rights being asserted.”°°
Furthermore, even if Plaintiff asserts that the federal constitutional question should be submitted
to arbitration pursuant to the agreement,’’ Defendant “denies that it agreed to have claims of a
constitutional magnitude subject to an arbitral forum,”** so the question whether the parties have
submitted the First Amendment dispute to arbitration is also an issue for the Court to
determine.*”
The Court holds that Plaintiff alleged a substantial and disputed First Amendment
question in its complaint, which confers federal question jurisdiction on this Court. The Court
will exercise supplemental jurisdiction over any state law claims in this case.*’ Plaintiff's motion
to remand“! is DENIED.
IT IS SO ORDERED.
DONE at McAllen, Texas, this 29th day of July 2020.

WW Woors
Micae varez
United States District Judge

See Hitt v. Connell, 301 F.3d 240, 245-46 (5th Cir. 2002) (recognizing a First Amendment associational right and
cause of action for retaliation for a public employee’s right to associate with a union).
°° Dkt. No. 7 at 3, § 13.
*7 Cf Dkt. No. 4 at 7, § 21.
*8 Dkt. No. 7 at 4-5, § 22.
Howsam y. Dean Witter Reynolds, 537 U.S. 79, 83 (2002).
See 28 U.S.C. § 1367(a) (“[T]he district courts shall have supplemental jurisdiction over all other claims that are
so related to claims in the action within such original jurisdiction that they form part of the same case or
controversy.”).
“' Dkt. No. 4.

6/6

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10673587. Public record. Not legal advice.