Tammy Bell v. Jon Thornburg

Case: 13-30155 Document: 00512515198 Page: 1 Date Filed: 01/29/2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

January 29, 2014

No. 13-30155 Lyle W. Cayce

Clerk

TAMMY BELMON BELL,

Plaintiff–Appellant

v.

JON C. THORNBURG,

Defendant–Appellee

Appeal from the United States District Court

for the Western District of Louisiana

ON PETITION FOR REHEARING

(Opinion December 30, 2013, No. 13-30155, – F.3d —)

Before STEWART, Chief Judge, KING, and PRADO, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant Tammy Belmon Bell’s petition for rehearing is

DENIED. Defendant-Appellee Jon C. Thornburg’s petition for rehearing to

clarify opinion is GRANTED.

The opinion, No. 13-30155, – F.3d —, is hereby WITHDRAWN, and the

attached substitute opinion is ISSUED in its place.

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No. 13-30155

EDWARD C. PRADO, Circuit Judge:

Tammy Belmon Bell (“Bell”), a former employee of Jon C. Thornburg

(“Thornburg”), the standing bankruptcy trustee for the Western District of

Louisiana, filed suit in state court alleging that she had been terminated

because of her race in violation of the Louisiana Employment Discrimination

Law (“LEDL”), Louisiana Revised Statutes §§ 23:301–03, 23:323. Thornburg

removed Bell’s suit to federal court under the federal officer removal statute, 28

U.S.C. § 1442(a)(1). Bell moved to have the case remanded to state court, while

Thornburg moved for summary judgment. The district court determined that

removal was proper, and that Thornburg should be granted summary judgment

because he did not qualify as an “employer” under the LEDL. Bell appeals both

determinations. Because removal was proper and Thornburg does not qualify

as an employer under the LEDL, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

The record is almost entirely devoid of any statements, affidavits, or other

evidence. The following facts are taken exclusively from the pleadings in Bell’s

state-court petition. See generally Cavallini v. State Farm Mut. Auto Ins. Co.,

44 F.3d 256, 264 (5th Cir. 1995) (“Limiting the removal jurisdiction question to

the claims in the state court complaint . . . permits early resolution of which

court has jurisdiction, so that the parties and the court can proceed with, and

expeditiously conclude, the litigation.”).

Bell, an African-American woman, was employed in the office of the

Chapter 13 standing trustee for the Western District of Louisiana for fourteen

years, most recently as its office manager. In 2008, Thornburg began serving as

the standing trustee for Chapter 13 bankruptcies in the Western District of

Louisiana. Bell claims that she and Thornburg disagreed frequently, and the

quality of her work life deteriorated after Thornburg’s arrival. In October 2010,

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Bell was required to submit to a “peer review,” which three trustees from the

National Organization of Chapter 13 Trustees administered. Two of the trustees

interviewed Bell, while a third sought input from the local bankruptcy judge.

Based in part on statements by the bankruptcy judge that he disliked Bell, the

peer review panel suggested to Thornburg that Bell be fired. Thornburg

disagreed, but nonetheless believed Bell should be given a different position.

Bell remained on the office’s payroll while Thornburg looked for another position

for her in the office, but problems between Thornburg and Bell persisted, and

Thornburg ultimately terminated Bell on April 4, 2011. She was replaced by a

white woman, who Bell contends was less qualified.

B. Procedural Background

On March 6, 2012, Bell sued Thornburg in Louisiana state court, alleging

that she had been terminated because of her race in violation of the LEDL.

Thornburg removed to federal district court in the Western District of Louisiana

on the theory that, as a standing trustee, he was a person acting under an officer

of the United States and thus entitled to remove the suit under the federal

officer removal statute, 28 U.S.C. § 1442(a)(1). After the removal order was

granted, Thornburg moved for summary judgment, arguing that he had not

employed twenty or more employees for twenty or more weeks, as is required to

qualify as an “employer” under the LEDL, Louisiana Revised Statute §

23:302(2). Bell, meanwhile, moved to have the case remanded to state court,

arguing that Thornburg was a private citizen not covered by the federal officer

removal statute.

The magistrate judge assigned to the case found that this Court’s decision

in Cromelin v. United States, 177 F.2d 275 (5th Cir. 1949), precluded the

application of § 1442(a)(1) to Thornburg. Cromelin considered whether the

Federal Tort Claims Act applied to bankruptcy trustees and held that a “trustee,

like a receiver, is an officer of [the] court, appointed by the court, directed by the

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court, and paid by the court from the funds in the court. He is in no sense an

agent or employee or officer of the United States.” 177 F.2d at 277. Therefore

Thornburg, the magistrate judge reasoned, could not invoke §1442(a)(1), which

by its terms applies only to “[t]he 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.” The magistrate judge also noted, however, that regardless of

whether § 1442(a)(1) applied to Thornburg, removal under any part of § 1442

carries with it the additional requirement that the mover assert “a colorable

claim of federal immunity or other federal defense.” See Mesa v. California, 489

U.S. 121, 124, 129 (1989). Because Thornburg had provided nothing more than

the conclusory statement in his notice of removal that “he has a valid and

colorable federal defense to all claims made,” the magistrate judge determined

that removal had been improper and recommended remanding the case to state

court.

The district court disagreed with the magistrate judge’s conclusion that

removal was improper. The court clarified that even if § 1442(a)(1) covers only

officers of the United States and those “acting under” them, § 1442(a)(3) provides

the same removal privileges to officers of the courts of the United States. See 28

U.S.C. § 1442(a)(3) (offering the federal officer removal privilege to “[a]ny officer

of the courts of the United States, for or relating to any act under color of office

or in the performance of his duties”). Thornburg, who, according to the district

court, was an officer of the courts, was thus free to remove under the statute.

With respect to the magistrate judge’s determination that Thornburg had failed

to meet the requirement that he aver a federal defense, the court relied on Bell’s

allegation in her state-court petition that Thornburg “used the ‘peer review’ as

the reason for his alleged discriminatory actions leading to Plaintiff’s

termination.” The court concluded that because the peer review purportedly

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involved the presiding bankruptcy judge, Thornburg had sufficiently averred a

colorable federal defense, and it denied Bell’s remand request.1

The district court then turned to Thornburg’s motion for summary

judgment. The court agreed with Thornburg that because he had not employed

more than twenty people during twenty or more weeks in the last year, he could

not be considered an employer under the LEDL. The court thus concluded that

the LEDL did not apply to Thornburg, and granted his summary judgment

motion. Bell timely appealed.

II. DISCUSSION

A. Standard of Review

This Court reviews the denial of a motion to remand de novo. Manguno

v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 722 (5th Cir. 2002). The Court

also reviews a grant of summary judgment de novo, viewing all evidence in the

light most favorable to the nonmoving party and drawing all reasonable

inferences in that party’s favor. Pierce v. Dep’t of the U.S. Air Force, 512 F.3d

184, 186 (5th Cir. 2007). “[S]ummary judgment is proper if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986) (internal quotation marks omitted).

B. Whether the District Court Properly Exercised Jurisdiction over

Bell’s Suit Against Thornburg

The federal officer removal statute, 28 U.S.C. § 1442, creates an exception

to the well-pleaded complaint rule. The statute states, in relevant part:

1

We note that in his opposition to Bell’s motion to remand, and in his objections to the

magistrate judge’s report and recommendation, Thornburg did not agree with any of Bell’s

factual allegations. Instead, he argued only that his acts (as portrayed by Bell) must be

understood as having been “performed in his official capacity as Chapter 13 Trustee,” and

arising out of “[Bell's] status as an employee with the Chapter 13 Trustee office.”

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(a) A civil action or criminal prosecution that is commenced in a

State court and that is against or directed to any of the following

may be removed by them to the district court of the United States

for the district and division embracing the place wherein it is

pending:

(1) The United States or any agency thereof or any officer (or

any person acting under that officer) of the United States or

of any agency thereof, in an official or individual capacity, for

or relating to any act under color of such office or on account

of any right, title or authority claimed under any Act of

Congress for the apprehension or punishment of criminals or

the collection of the revenue. . . .

(3) Any officer of the courts of the United States, for or

relating to any act under color of office or in the performance

of his duties . . . .

28 U.S.C. § 1442. Thus, to invoke the federal officer removal statute, Thornburg

must both act under an officer of the United States and have averred a colorable

federal defense. See Mesa, 489 U.S. 133–34. We address each of these

requirements in turn.

1. Whether Thornburg “act[s] under” an officer of the United States

such that removal under the federal officer removal statute is

available to him

Bell argues that this Court should remand her claim to state court

because, based on this Court’s decision in Cromelin, Thornburg cannot take

advantage of the federal officer removal statute and remove the case under

§ 1442(a)(1). See Cromelin, 177 F.2d at 277 (holding that a bankruptcy trustee

is “an officer of [the] court, appointed by the court, directed by the court, and

paid by the court” but “is in no sense an agent or employee or officer of the

United States”). Thornburg, however, claims that he is entitled to removal

under § 1442 because he acts under and closely with the United States Trustee.

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We hold that Thornburg is a “person acting under” an officer of the United

States who may invoke § 1442(a)(1) of the federal officer removal statute. While

Bell cites Cromelin for support, she fails to acknowledge that it was decided in

1949, before the Bankruptcy Reform Act of 1978 changed the way the

bankruptcy trustee system was administered. Thus, Cromelin does not control

our decision here. See United States Trustee Program Policies and Practices

Manual, vol. 1, ch. 1-4.1 (Oct. 2011), available at

http://www.justice.gov/ust/eo/ust_org/ustp_manual/docs/Volume_1_Overview.pdf

(hereinafter “Trustee Manual”). Due in part to concern that the courts would not

fairly adjudicate the rights of debtors, creditors, and third parties, the

Bankruptcy Reform Act removed the authority to perform many administrative

duties from the courts and instead concentrated them under a new position in

the Department of Justice—specifically, the U.S. Trustee. See id. The U.S.

Trustee’s administrative duties include appointing Chapter 13 standing trustees.

28 U.S.C. § 586(b); Trustee Manual, Chapter 1-4.3. But, the Bankruptcy Reform

Act of 1978 also means that the district court’s conclusion that Thornburg could

invoke § 1442(a)(3) was based on an inaccurate assumption, because the U.S.

Trustee is an officer of the Department of Justice, not of the court.

In concluding that Thornburg meets the “acting under” requirement, we

rely on Watson v. Philip Morris Cos., 551 U.S. 142 (2007), the Supreme Court’s

most recent elaboration on this requirement. In Watson, the Court considered

whether the Federal Trade Commission’s close supervision of Philip Morris’s

activities meant the company was “acting under an officer of the United States.”

Id. at 145 (emphasis and internal quotation marks omitted). Although the Court

held that § 1442(a)(1) was unavailable to Philip Morris, id., it reiterated previous

decisions’ guidance that the statute be “liberally construed,” id. at 147 (quoting

Colorado v. Symes, 286 U.S. 510, 517 (1932)). The Court explained that

§ 1442(a)(1) may apply “to private persons ‘who lawfully assist’ [a] federal officer

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‘in the performance of his official duty,’” id. at 151 (quoting Davis v. South

Carolina, 107 U.S. 597, 600 (1883)), or to private parties who “were ‘authorized

to act with or for [federal officers or agents] in affirmatively executing duties

under . . . federal law,’” id. (alterations in original) (quoting City of Greenwood

v. Peacock, 384 U.S. 808, 824 (1966)). The Court made clear that “simply

complying with the law” is not sufficient; “‘acting under’ must involve an effort

to assist, or to help carry out, the duties or tasks of the federal superior.” Id. at

152 (emphases omitted).

Though Bell argues that Chapter 13 standing trustees are private citizens,

Watson makes clear that this fact alone does not bar the use of § 1442(a)(1). See

551 U.S. at 151. Chapter 13 standing trustees like Thornburg are appointed

pursuant to federal law by the U.S. Trustee for the purpose of assisting the U.S.

Trustee with especially heavy Chapter 13 bankruptcy caseloads. See 28 U.S.C.

§ 586(b); 28 C.F.R. § 58.2. The U.S. Trustee supervises the standing trustee,

who is tasked with carrying out the provisions of the Bankruptcy Code. 28

U.S.C. § 586(b). Unlike Philip Morris in Watson, standing trustees receive

delegated authority; they do not merely comply with the law. They both “assist”

and “carry out” the duties and tasks of their federal superiors. Thus, we

conclude that Thornburg “act[s] under” officers of the United States and fall

within § 1442(a)(1)’s purview.

2. Whether Thornburg has averred “a colorable federal defense”

Bell also claims that Thornburg is not entitled to invoke the federal officer

removal statute because he has failed to aver a colorable federal defense and

failed to provide any evidence to establish a federal defense. Thornburg counters

that, because his employment actions relative to Bell were conducted under the

color of office and while performing his official duties, he has averred a colorable

federal defense and was entitled to remove this case under the federal officer

removal statute. He points this Court to two earlier decisions, Willingham v.

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Morgan, 395 U.S. 402 (1969) and Palermo v. Rorex, 806 F.2d 1266 (5th Cir.

1987), to support his arguments.

The Supreme Court has made clear that “all the various incarnations of

the federal officer removal statute . . . require the averment of a federal defense.”

Mesa, 489 U.S. at 133–34. But, the officer seeking removal need not “win his

case [by proving his federal defense] before he can have it removed.”

Willingham, 395 U.S. at 407. He must only allege “a causal connection between

what the officer has done under asserted official authority and the state

[action],” Mesa, 489 U.S. at 131 (quoting Maryland v. Soper, 270 U.S. 9, 33

(1926)); see also Jefferson Cnty. v. Acker, 527 U.S. 423, 431 (1999) (“Under the

federal officer removal statute, suits against federal officers may be removed

despite the nonfederal cast of the complaint; the federal-question element is met

if the defense depends on federal law.”).

In Willingham, the Supreme Court considered whether the bare assertion

of federal qualified immunity sufficed to allow removal under § 1442(a)(1). See

395 U.S. at 406–08. The case involved a state claim by a prisoner in a federal

penitentiary that prison officials had assaulted him. Id. at 403. The prison

officials removed, stating that anything they may have done to the prisoner was

“in the course of their duties as officers of the United States of America . . . and

under color of such offices.” Id. On the issue of how strong the evidentiary

showing of immunity had to be to obtain removal, the Court stated, “One of the

primary purposes of the removal statute . . . was to have [colorable defenses

arising out of federal officers’ duty to enforce federal law] litigated in the federal

courts.” Id. at 407. “In fact,” the Court went on, “one of the most important

reasons for removal is to have the validity of the defense of official immunity

tried in a federal court. The officer need not win his case before he can have it

removed.” Id.

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Having settled the question of whether an officer need prove, rather than

merely assert, a federal defense, the Court proceeded to discuss the distinct issue

of whether the record in the case would support a finding that the suit involved

“conduct under color of office, and that it [was], therefore, removable.” Id. It

observed that, in a civil suit of the type at issue in Willingham, “it was sufficient

for petitioners to have shown that their relationship to [a] respondent derived

solely from their official duties.” Id. at 409. The Court found that the prison

officials had made the requisite showing by asserting that “their only contact

with respondent occurred inside the penitentiary, while they were performing

their duties.” Id. It was enough that the prison officials were “on duty, at their

place of federal employment, at all the relevant times. If the question raised is

whether they were engaged in some kind of ‘frolic of their own’ . . . they should

have the opportunity to present their version of the facts to a federal, not a state,

court.” Id.

We hold that Thornburg has averred a colorable federal defense. He has

alleged that his “employment actions relative to [Bell] were performed under the

color of his office, in the performance of his duties thereunder, after input from

the peer review process, and involving communication with and involvement of

the United States Trustee and a United States bankruptcy judge.”2 This kind

of assertion compares favorably to that found sufficient in Willingham, where

the prison officials in affidavits declared that “the only contact [they] had with

respondent was inside the walls of the United States Penitentiary . . . in

performance of [their] official duties.” 395 U.S. at 407–08 (internal quotation

mark omitted).

2

We understand Thornburg to mean only that the facts alleged in Bell’s pleadings

implicate the involvement of the United States Trustee and a United States bankruptcy judge,

not that Thornburg accepts those allegations as true. See Palermo, 806 F.2d at 1269

(“Appellees relied upon the allegations in the Complaints to show that the acts complained of

were within the scope of their employment.”).

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Our decision in Palermo also bolsters our conclusion that Thornburg has

averred a colorable federal defense. Palermo involved a state law wrongful

death claim stemming from the workplace harassment of an IRS employee who

ultimately committed suicide. 806 F.2d at 1268. We held that because the “state

court Complaint specifically alleges that the actions complained of were

connected with [the deceased’s] status as an employee of the IRS,” and the

defendants acted “upon the authority[,] consent and approval of [their]

supervisors,” “there [could] be no doubt that the acts alleged in the Complaint[]

were performed ‘under color of federal office.’” Id. at 1269. The fact that the IRS

employees were sued in their individual capacities for acts that were allegedly

maliciously motivated was immaterial because the employees were entitled to

present their version of the facts in a federal court. See id. at 1269–70 (applying

Willingham). Here, as in Palermo, the only claims Bell makes stem from

employment actions performed in the course of the administration of

Thornburg’s federal duties. Thus, under Willingham and Palermo, and

considering the Supreme Court’s guidance that § 1442(a)(1) “must be ‘liberally

construed,’” we hold that Thornburg has averred a colorable federal defense and

was entitled to remove this case under the federal officer removal statute. See

Watson, 551 U.S. at 147.

C. Whether Thornburg is Entitled to Summary Judgment Because He

Does Not Qualify As An Employer Under the LEDL

Having determined that removal was proper in this case, we now address

whether Thornburg qualifies as an employer under the LEDL. The statute

defines an employer as:

a person, association, legal or commercial entity, the state, or any

state agency, board, commission, or political subdivision of the state

receiving services from an employee and, in return, giving

compensation of any kind to an employee. The provisions of this

Chapter shall apply only to an employer who employs twenty or

more employees within this state for each working day in each of

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twenty or more calendar weeks in the current or preceding calendar

year.

La. Rev. Stat. Ann. § 23:302(2) (emphasis added).

Bell does not dispute that Thornburg has not employed the requisite

number of people to qualify as an employer. Instead she argues that Thornburg

should be considered part of the larger “association” of “the Chapter 13 system,”

which she alleges employs more than 125 people in the state. We need not credit

this assertion because Bell provides no evidence for it. See Fed. R. Civ. P.

56(c)(1). But, even if we were to credit Bell’s claim about the number of people

employed within “the Chapter 13 system” in the state, Thornberg would still not

meet the LEDL’s definition of employer. Nothing Bell claims bears on whether

Thornburg himself employed a sufficient number of people to be held liable

under the LEDL. Thus, we hold summary judgment was proper because

Thornburg does not qualify as an employer under the LEDL.

III. CONCLUSION

For the foregoing reasons, we AFFIRM.

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