State of Ohio v. Charles E. Wright, Ohio State Highway Patrol Trooper

NATHANIEL R. JONES, Circuit Judge,

concurring.

I concur with the majority opinion which holds that we have no jurisdiction over this *621 appeal in accordance with 28 U.S.C. § 1447 (d) (1988). I write separately, however, to give fuller exposition to this holding.

If a district court remands a case based on the grounds listed in 28 U.S.C. § 1447 (c) (1988), 1 this court cannot review the remand order. 28 U.S.C. § 1447 (d); Thermtron Products v. Hermansdorfer, 423 U.S. 336, 343 , 96 S.Ct. 584, 589 , 46 L.Ed.2d 542 (1976). Importantly, this court is without jurisdiction to review a remand order grounded in Section 1447(c) even if the district court bases its determination that it lacks jurisdiction on erroneous legal principles or analysis. Thermtron, 423 U.S. at 343 , 96 S.Ct. at 589 (Section 1447(d) “prohibits review of all remand orders issued pursuant to § 1447(c) whether erroneous or not and whether review is sought by appeal or by extraordinary writ. This has been the established rule under § 1447(d) and its predecessors stretching back to 1887.”); Gravitt v. Southwestern Bell Tel. Co., 430 U.S. 723, 723 , 97 S.Ct. 1439, 1439 , 52 L.Ed.2d 1 (1977) (per curiam) (though the Fifth Circuit had vacated a district court’s remand order because the district court “had employed erroneous principles in concluding that it was without jurisdiction,” the Supreme Court reversed, holding that the district court’s decision that it lacked jurisdiction plainly falls under Section 1447(c) and thus is not reviewable — erroneous or not); see also Volvo of America Corp. v. Schwarzer, 429 U.S. 1331, 1331-33 , 97 S.Ct. 284, 284-85 , 50 L.Ed.2d 273 (1976) (opinion in chambers) (review of district court’s order remanding a case pursuant to Section 1447(c) is barred by Section 1447(d), even though the district court “may have been wrong in its analysis”; taking the position that erroneous jurisdictional findings should be reviewable “would mean that any allegedly erroneous application of § 1447(c) would be reviewable by writ of mandamus, leaving the § 1447(d) bar extant only in the case of allegedly proper applications of § 1447(c), a reading too Pickwickian to be accepted, and contrary to the clear language of Thermtron”).

The panel originally entertaining this appeal seemingly found jurisdiction to exist under an exception to the general jurisdictional rule of Section 1447(d) for remand orders that are rooted in substantive determinations of law, citing Regis Assocs. v. Rank Hotels (Management) Ltd., 894 F.2d 193, 194 (6th Cir.1990). In Regis, we reviewed a remand order that was based on an interpretation of a forum-selection clause. We held that a direct appeal could obtain, writing: “Following Thermtron, a body of case law has developed holding that a remand order is reviewable on appeal when it is based on a substantive decision on the merits of a collateral issue as opposed to just matters of jurisdiction.” Id. In line with Regis, at least three other circuits have held that a district court’s resolution of a forum-selection clause dispute leading to a remand is reviewable on direct appeal. See Foster v. Chesapeake Ins. Co., 933 F.2d 1207, 1210-11 (3d Cir.1991), cert. denied, — U.S. —, 112 S.Ct. 302 , 116 L.Ed.2d 245 (1991); Karl Koch Erecting Co. v. New York Convention Ctr. Dev. Corp., 838 F.2d 656 , 658-59 (2d Cir.1988); Pelleport Investors, Inc. v. Budco Quality Theatres, Inc., 741 F.2d 273, 276-77 (9th Cir.1984); see also Clorox Co. v. United States Dist. Court, 779 F.2d 517, 520 (9th Cir.1985). The rationale for review on direct appeal is that resolution of a forum-selection clause dispute is a matter of contract law, separate and distinct from the issue of whether a federal district court has subject matter jurisdiction. See Pelleport, 741 F.2d at 276 (“the district court did not merely remand this case to the state court; it reached a substantive decision on the merits apart from any jurisdictional decision”) (emphasis added).

As the majority opinion in the instant case notes, the policy underlying the jurisdictional *622 bar of Section 1447(d) is to prevent protracted disputes over federal jurisdiction which would serve to delay resolution on the merits of an action commenced in state court. See also Thermtron, 423 U.S. at 351 , 96 S.Ct. at 593 . “[W]here a district court bypasses the jurisdictional arguments and reaches the merits of a contract dispute, the policy is inapplicable.” Pelleport, 741 F.2d at 277 (emphasis added); see also Karl Koch Erecting Co., 838 F.2d at 658 (“This policy is not applicable when a district court with subject-matter jurisdiction remands a case on the basis of its interpretation of a forum-selection clause.”) (emphasis added). In sum, where the specific issue is not whether a case was improvidently removed to a federal court because the federal court lacks subject matter jurisdiction, this court may entertain a direct appeal of the district court’s resolution of that issue.

A distinctly different issue is presented, however, where the district court’s sole consideration leading to remand is whether the case was improvidently removed in the first instance due to lack of subject matter jurisdiction. Such is the case here.

State Trooper Charles E. Wright filed a Petition to Remove a Contempt Action pursuant to 28 U.S.C. § 1442 (a)(1). The district court determined that Trooper Wright failed to allege or aver a federal defense which, according to the Supreme Court in Mesa v. California, 489 U.S. 121 , 109 S.Ct. 959 , 103 L.Ed.2d 99 (1989), is necessary for removal under 28 U.S.C. § 1442 (a)(1). Mesa, 489 U.S. at 139 , 109 S.Ct. at 970 (“Federal officer removal under 28 U.S.C. § 1442 (a) must be predicated upon averment of a federal defense.”); see Decision and Entry Dismissing Petition for Removal; Cause Remanded; Termination Entry at 7 [hereinafter Decision] (“Herein, the petition for removal ... does not allege a federal defense to the pending contempt upon which Defendant relies.”). The district court concluded that it did not have subject matter jurisdiction, and thus remanded the case. See Entry Denying Defendant’s Motion for a Stay at 1 (“On May 28, 1991, this Court entered its Decision concluding that it was without subject matter jurisdiction over Defendant’s removal petition.”). 2 Section 1447(c) squarely contemplates this ground for remand. See Thermtron, 423 U.S. at 346 , 96 S.Ct. at 590 (remand orders that are grounded on the fact that removal was “improvident and without jurisdiction” are immune from review under Section 1447(d)). Thus, even if the district court erred in its legal analysis, the remand order is immune from review by any means. See Gravitt, 430 U.S. at 723 , 97 S.Ct. at 1439 ; Schwarzer, 429 U.S. at 1331-33 , 97 S.Ct. at 284-85 ; Foster, 933 F.2d at 1211 (“the district court is therefore given the last word on whether it has jurisdiction to hear the case”).

Trooper Wright seeks to avoid this result by invoking the logic (or rather, incanting the language) of Whitman v. Raley’s Inc., 886 F.2d 1177 (9th Cir.1989). In that case, the Ninth Circuit explained that, generally speaking, the plaintiff is master of his/her complaint. Thus, generally speaking, under the “well-pleaded complaint rule,” a federal question must be present on the face of a complaint filed in state court for the defendant to remove the action to a federal court. Mere assertion of a federal defense will not serve as a basis for removal, even if the federal defense is obvious and expected in response to the elaim(s) brought. There is a notable exception to this rule, however. Where Congress intends completely to preempt state law in a certain area, causes of action arising thereunder may be removed though a federal question is not present on the face of the complaint. If a district court makes the threshold determination that preemption is incomplete, it does not have subject matter jurisdiction, and must thus remand the case to the state court. Such a remand is not reviewable, period. If a district court, however, makes the threshold determination that preemption is complete, it does have subject matter jurisdiction and may thus consider collateral issues (such as the merits of “preemption defenses” — an is *623 sue raised in Whitman). See generally id. at 1180-81.

Trooper Wright seems to apply Whitman to the case at bar in the following way. The underlying contempt action in this case arose from a situation where Trooper Wright seized suspected contraband in the course of a routine traffic stop. He turned over the suspected contraband to federal officers per an agreement established between the Ohio State Highway Patrol (“OSHP”) and the Drug Enforcement Administration (“DEA”). A state court sought return of the suspected contraband from Trooper Wright, and he failed to comply with this request. With these basic facts as a framework, Trooper Wright observes that the United States government may adopt a seizure made by a state official. See United States v. One Ford Coupe Auto., 272 U.S. 321, 325 , 47 S.Ct. 154, 155 , 71 L.Ed. 279 (1926); Kieffer v. United States, 550 F.Supp. 101, 103 (E.D.Mich.1982). When the adoption takes place, Trooper Wright contends, the state official who did the seizing is retroactively cloaked with federal authority effective as of the moment of the seizure. Cf. The Caledonian, 17 U.S. (4 Wheat.) 100, 103 , 4 L.Ed. 523 , 525 (1819) (“If [the government] adopts the acts of the party [that seizes property], and proceeds to enforce the forfeiture by legal process, this is sufficient recognition and confirmation of the seizure, and is of equal validity in law, with an original authority given to the party to make the seizure. The confirmation acts retroactively, and is equivalent to a command.”). Furthermore, Trooper Wright seems to contend that the federal statutory duty to report and turn over suspected contraband to federal officials, see 19 U.S.C. § 1602 (1988); 21 U.S.C. § 881 (d) (1988), 3 was extended to him as he carried out the procedures the OSHP had established in conjunction with DEA. See Trooper Wright’s Initial Br. at 10-12, 14. “As a result, it is clear that Congress has manifested an intent to immunize local governments through the adoptive seizure federal forfeiture laws, therefore, establishing a complete preemption of this area of federal law vested in the federal courts.” Trooper Wright’s Supplemental Br. at 12; see also Appellant’s Memorandum in Opposition to Appellee’s Motion to Dismiss at 4 (“Appellant contends that Congress has clearly manifested its intent to assume federal court jurisdiction in adoptive seizure matters when it enacted the provisions of federal law under 21 U.S.C. Section 881 and 19 U.S.C. Section 1602 .”). Trooper Wright seems to be arguing that the district court implicitly recognized the complete federal preemption of matters having to do with adoptive seizures (when, for example, it held that Trooper Wright was acting pursuant to federal authority when he failed to deposit the seized suspected contraband with' the state court), but “merely disagreed with [Appellant’s] federal defenses.” Appellant’s Memorandum in Opposition to Appellee’s Motion to Dismiss at 3. Whether federal defenses or immunities were alleged, according to Trooper Wright, is to be understood as a “collateral issue,” a ruling on which is *624 reviewable on direct appeal in accordance with Whitman . 4

Trooper Wright’s argument is misguided. The district court’s determination that Trooper Wright alleged no federal defenses or immunities was not a “collateral issue.” In accordance with Mesa , it went to the very heart of whether the district court had, in the first instance, subject matter jurisdiction over the case. 5

In addition, the district court never made any determination that federal law had completely preempted the field of adoptive seizures. If it had made such a determination, it never would have written, “this case was remanded to the Miami County Municipal Court because this Court was without subject matter jurisdiction over the controversy.” Entry Denying Defendant’s Motion for a Stay at 2 n. 2.

To complete this discussion, it should be noted that Trooper Wright also argues that the Sixth Circuit case of In re Romulus Community Schools, 729 F.2d 431 (6th Cir.1984), supports his jurisdictional contentions. See Trooper Wright’s Initial Br. at 10. Trooper Wright’s argument is misplaced. In Romulus, the plaintiff had filed a four-count complaint in state court, three counts based on state law and one count based on federal law. The defendants removed the case to federal court, and the plaintiffs thereupon filed a motion to amend their complaint by striking the federal claim which had formed the only basis for removal. It was clear that the case had been properly removed and that the district court had jurisdiction to hear it. It was also clear that once the case had been removed, the district court had pendent jur *625 isdiction over the state claims even if the federal law claim disappeared. The district court’s remand decision was not based on any finding that removal was improvidently granted due to lack of subject matter jurisdiction. The remand decision rested entirely on the district court’s “perceived discretion under the doctrine of pendent jurisdiction to remand the case.” Id. at 435. This being the case, this court determined that it could review the remand order upon a petition for writ of mandamus. 6 Id.; see also Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 348-57 , 108 S.Ct. 614, 617-22 , 98 L.Ed.2d 720 (1988); J.O. v. Alton Community Unit Sch. Dist., 909 F.2d 267 , 269-71 (7th Cir.1990).

The remand in the case at bar was not discretionary; it was jurisdictional. Thus, Romulus is simply inapplicable.

In sum, the district court made the threshold determination that it was without subject matter jurisdiction to grant Trooper Wright’s petition for removal of the state contempt action. Once this decision is made, even if it is clearly erroneous, it may not be reviewed, according to 28 U.S.C. § 1447 (d) and Therm-tron. Thus, I agree that this appeal is properly dismissed.

. Section 1447(c) reads;

A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case.

(Emphasis added.)

. Though the district court did not cite Section 1447 in its remand order, ‘‘[s]everal decisions show that the appeals courts will liberally construe the district court's reasons for a remand in order to find that the court invoked § 1447(c) and thereby avoid reviewing the challenged order.” In re Romulus Community Schools, 729 F.2d 431 , 435 (6th Cir.1984) (citing cases).

. 19 U.S.C. § 1602 imposes a duty to report and to turn over property seized for violation of the customs laws:

It shall be the duty of any officer, agent, or other person authorized by law to make seizures of merchandise or baggage subject to seizure for violation of the customs laws to report every such seizure immediately to the appropriate customs officer ... and to turn over and deliver to such customs officer any ... merchandise or baggage seized by him.... 21 U.S.C. § 881 (d) incorporates this provision into the forfeiture provisions relating to property seized for violation of drug laws:

§ 881. Forfeitures

(d) Other laws and proceedings applicable

The provisions of law relating to the seizure, summary and judicial forfeiture, and condemnation of property for violation of the customs laws; the disposition of such property or proceeds from the sale thereof; the remission or migration of such forfeitures; and the compromise of claims shall apply to seizures and forfeitures incurred, or alleged to have been incurred, under any of the provisions of this subchapter, insofar as applicable and not inconsistent with the provisions hereof; except that such duties as are imposed upon the customs officer of any other person with respect to the seizure and forfeiture of property under the customs laws shall be performed with respect to the seizures and forfeitures of property under this subchapter by such officers, agents, or other persons as may be authorized or designated for that purpose by the Attorney General, except to the extent that such duties arise from seizures and forfeitures effectuated by any customs officer.

. The United States, which has submitted amicus briefs, makes essentially the same argument. It maintains that the district court’s rejection of Trooper Wright’s claims to federal defenses and immunities constitutes a "substantive decision on the merits of a collateral issue as opposed to just matters of jurisdiction.” See Opposition of United States to Motion to Dismiss at 3 (quoting Regis, 894 F.2d at 194 ). As will be discussed forthwith, this contention is meritlcss. The decision of the district court concerning Trooper Wright's claims to federal defenses and immunities goes to the very heart of federal jurisdiction; it is not "opposed to" it.

. Judge Kennedy, in her dissent, contends that the district court’s determination that Trooper Wright alleged or averred no federal defense was indeed a "substantive decision[] on [a] collateral issue[] apart from purely jurisdictional concerns.’.’ In her view, "[the district court] did not say, Wright, you have no colorable defense because there is no basis to claim any such defense. Rather, it went on to examine the defense and decided that the drug forfeiture laws do not incorporate the customs laws.”

I respectfully disagree with this rendition of what the district court did. In my view, the district court did say, Trooper Wright, you have no colorable defense because there is no basis to claim any such defense. The district court stated, "Herein, the petition for removal ... does not allege a federal defense to the pending contempt upon which Defendant relies.” Decision at 7. It then went on to state why, in its opinion, there is no basis to claim any such defense. First, it concluded that Trooper Wright had not alleged a federal defense under Section 1602 because “there is simply no evidence before the Court that [Trooper Wright] is an 'officer, agent. or other person authorized by law to make seizures ... for violation of the customs Iaws[,]’ ” and Trooper Wright "presents neither argument nor evidence that the seizure of $12,000.00 in United States currency from an automobile traveling in Miami County, Ohio was merchandise or baggage seized for violation of the customs laws.” Decision at 8. In a footnote, the district court concluded that Trooper Wright had not averred a federal defense by asserting that the state court was being hostile to federal interests because "there is absolutely no evidence before this Court regarding [the state court’s] asserted hostility." Id. at 7 n. 9. In another footnote, the district court determined that Trooper Wright had not asserted a federal defense under Section 881 because Trooper Wright "has provided no evidence that he is within this class of persons,” Decision at 8, viz., an "officer[], agentf], or other person[ ] as may be authorized or designated ... by the Attorney General.” 21 U.S.C. § 881 (d). Decision at 8 n. 10. In sum, the district court found no evidence of and no basis for claiming a colorable federal defense. That the district court reached this conclusion by reference to federal statutes does not necessarily make the conclusion a "substantive decision[ ] on [a] collateral issue[ ] apart from purely jurisdictional concerns.” Mesa does not require the district court to conclude whether a federal defense has been averred a priori. Mesa requires "an averment of a federal defense” for subject matter jurisdiction to inhere and thus removal to obtain under Section 1442(a). 489 U.S. at 139 , 109 S.Ct. at 969 . The district court examined the record before it and concluded that such a defense had not been averred. Whether or not we agree with this determination based on our own interpretation of the referents according to which the district court made its conclusion is of no moment.

. Along these lines, it is noted that even if this court decided that it may review the remand order in this case, the proper procedure to obtain such review is to file a petition for writ of mandamus, not a direct appeal. See Thermtron, 423 U.S. at 352-53 , 96 S.Ct. at 593-94 (if a remand order is not subject to the complete bar of Section 1447(d), "this Court has declared that because an order remanding a removed action does not represent a final judgment reviewable by appeal, '[t]he remedy in such a case is by mandamus to compel action, and not by writ of error to review what has been done’ ") (citation omitted); J.O., 909 F.2d at 271 ("A ... problem arises with respect to the plaintiffs’ direct appeal from the remand order. The Supreme Court's holding in Thermtron Products , indicates that our only power to review a remand order is through a petition for a writ of mandamus.”). Though in the past we have treated a direct appeal as a petition for writ of mandamus, see J.O. at 271 ("We will ... treat the appeal from the remand order as a petition for a writ of mandamus.”), it is further noted that the standard of review for mandamus actions presents a more difficult obstacle for a petitioner than the standard of review for direct appeals presents for an appellant. See In re Bendectin Prods. Liability Litig., 749 F.2d 300, 303-04 (6th Cir. 1984).