Petition for Writ of Certiorari — Rowland J. Martin, Jr., Individually and as Administrator to the Estate of Johnnie Mae King, Petitioner v. Bexar County, Texas, et al.
Supreme Court briefJan 21, 2023
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APPENDIX
APPENDIX A1 - ORDER OF THE UNITED
STATES COURT OF APPEALS FOR THE
FEDERAL CIRCUIT FILED NOVEMBER 23,
2022
United States Court of Appeals
for the Federal Circuit
BEXAR COUNTY, et al,
Plaintiffs-Appellees
v.
ROWLAND J. MARTIN, JR., as Administrator
and Individually as Heir to the Estate of Johnnie
Mae King,
Defendant-Appellant
2022-2211
Appeal from the United States District Court for
the Western District of Texas in
No. 5:22-cv-00374-XR, Judge Xavier Rodriguez.
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ON MOTION
PER CURIAM.
ORDER
Appellees move to dismiss this appeal for lack
of jurisdiction. Rowland J. Martin, Jr. opposes the
motion.
This appeal stems from a 2014 Texas state court
action filed by state tax authorities against Mr.
Martin regarding a dispute over real property in
Bexar County, Texas. In April 2022, Mr. Martin
removed the case to the United States District
Court for the Western District of Texas.
The district court granted appellees’ motion to
remand for lack of subject matter jurisdiction,
denied Mr. Martin’s motion for reconsideration,
and remanded the case to state court. This appeal
followed.
We lack jurisdiction over this appeal. This court
generally has jurisdiction only over district court
cases arising under the patent laws, see 28 U.S.C. §
1295(a)(1); civil actions on review to the district
court from the United States Patent and Trademark
Office, § 1295(a)(4)(C); or certain cases against
the United States for claims “not exceeding
$10,000 in amount,” 28 U.S.C. § 1346(a)(2), see
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28 U.S.C. § 1295(a)(2). Although Mr. Martin’s
notice of appeal references § 1346, that provision
is not applicable here because the United States is
not a party to this action. Nor can jurisdiction on
this matter be predicated on the “Big Tucker Act,”
ECF No. 1-2, because that provision applies only
to claims presented to the United States Court of
Federal Claims, see 28 U.S.C. § 1491(a)(1).
Finally, to the extent that Mr. Martin’s response
argues that this court has jurisdiction in this case
based on its jurisdiction over his separate appeal
from a judgment of the United States Court of
Federal Claims, we must reject that argument.
When we lack jurisdiction, we will transfer the
case to another court where the case “could have
been brought at the time it was filed,” “if it is in
the interest of justice.” 28 U.S.C. § 1631. Flere,
however, Mr. Martin already filed an appeal with
the appropriate regional circuit, the United States
Court of Appeals for the Fifth Circuit, Appeal No.
22-50718.
Accordingly,
IT IS ORDERED THAT:
(1) The motion is granted. The appeal is dismissed.
(2) Each side shall bear its own costs.
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November 23, 2023
Date
FOR THE COURT
/s/Peter R. Marksteiner
Peter R. Marksteiner
Clerk of Court
ISSUED AS A MANDATE: November 23, 2022
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APPENDIX A2 - ORDER OF THE UNITED
STATES COURT OF APPEALS FOR THE
FIFTH CIRCUIT FILED DECEMBER 28,
2022
United States Court of Appeals
for the Fifth Circuit
No. 22-50822
Edward Bravenec, Et al,
Plaintiff—Appellee,
versus
Rowland J. Martin, Jr.,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:22-CV-522
Before Elrod, Graves, and Ho, Circuit Judges.
Per Curiam:
This court must examine the basis of its
jurisdiction, on its own motion if necessary. Hill v.
City of Seven Points, 230 F.3d 167, 169 (5th Cir.
35
2000). In this civil rights case removed from state
court, before the district court entered any ruling,
Defendant filed a notice of appeal and an amended
notice of appeal both directed to the Court of
Appeals for the Federal Circuit.
The district court forwarded only the amended
notice to this court for review. It is apparent from
the face of the document that it was not intended
to be a notice of appeal to this court from any
action by the district court. The appeal was
erroneously opened and must be dismissed.
Accordingly, the appeal is DISMISSED.
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APPENDIX B1 - ORDER OF THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TEXAS DATED
JULY 1 AND 15, 2022
Text Order GRANTING 19 Motion to Stay
Deadline to Respond to Defendant’s Motion to
Dismiss; MOOTING 20 Motion to Expedite
Hearing Requesting Motion to Stay entered by
Judge Xavier Rodriguez. Plaintiffs' motion to stay
the deadline to respond to Defendant's amended
motion to dismiss 18 pending resolution of
Plaintiffs' motion to remand is GRANTED. In the
event that the motion to remand is denied,
Plaintiffs shall have fourteen days from the Court's
ruling on the motion to remand to respond to
Defendant's motion to dismiss. Because the Court
has ruled on the motion to stay Plaintiffs' response
deadline, their motion to expedite a hearing on the
motion is MOOT. (This is a text-only entry
generated by the court. There is no document
associated with this entry.) (cb) (Entered:
07/01/2022)
Text Order TERMINATING 21 Motion to Dismiss
entered by Judge Xavier Rodriguez. Though styled
as a motion, the filing appears to be an untimely
response to Plaintiffs' motion to remand 8. (This is
a text-only entry generated by the court. There is
no document associated with this entry.) (cb)
(Entered: 07/15/2022)
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APPENDIX B2: ORDER OF THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TEXAS DATED
JULY 18, 2022
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
COUNTY OF BEXAR, STATE OF
TEXAS, CITY OF SAN ANTONIO, SAN
ANTONIO INDEPENDENT SCHOOL
DISTRICT
Plaintiffs
-vs
Case SA-22-CV-00374-XR
ROWLAND J. MARTIN JR;
Defendant
ORDER
On this date, the Court considered (1) the motion
to remand filed by Plaintiffs County of Bexar,
State of Texas, City of San Antonio, and San
Antonio Independent School District (collectively,
the “Tax Authorities”) (ECF No. 8); (2)
Defendant’s motion for a more definite statement
(ECF No. 10) and the response (ECF No. 12) and
38
reply (ECF No. 15) thereto; and (3) Defendant’s
motion for consolidation (ECF No. 11) and the
response (ECF No. 13) thereto; and (4)
Defendant’s motion to dismiss Plaintiffs’ motion to
remand (ECF No. 22). After careful consideration,
the Court issues the following order.
BACKGROUND
On March 6, 2014, Tax Authorities filed suit
against Martin in Cause No. 2014-TA1-00224 in
the 45th Judicial District Court of Bexar County,
Texas (the “2014 Tax Suit”). ECF No. 8 at 1-2.
Tax Authorities’ citation alleges that Martin failed
to timely pay ad valorem taxes assessed by tax
authorities against certain real properties in Bexar
County, Texas, including property that he inherited
from Ms. Johnnie Mae King (the “King Estate”).
Over eight years later, on April 18, 2022, Martin
removed the case to this Court on the basis of
federal question jurisdiction. ECF No. 1.
This is not Martin’s first attempt to remove
delinquent ad valorem tax proceedings against him
to federal court. In one such case, filed in 2009 in
the Western District of Texas, Martin removed a
2003 tax case, No. 2003-TA1-02385, to federal
court on the theory that the efforts to collect the
state court tax judgments violated the Fair Debt
Collection Practices Act. See Cnty. Of Bexar v.
Gilliam, No. SA-09-CA-949-FB, ECF No. 14 at 6
39
(W.D. Tex. Mar. 3, 2010) (Report and
Recommendation of Magistrate Judge John
Primomo). The Magistrate Judge concluded that
Martin’s removal of the case was both untimely
and “unwarranted” insofar as the existence of a
federal defense to a state-law claim does not create
federal question jurisdiction. See id. at 6 (citing
Gutierrez v. Flores, 543 F.3d 248, 252 (5th Cir.
2008)). Accepting the recommendation of the
Magistrate Judge, Judge Biery assessed a $1,000
monetary penalty as sanctions for his violation of
Rule 11, and admonished Martin not to remove
delinquent tax suits to this Court in the future until
certain prerequisites were met. Cnty. Of Bexar v.
Gilliam, No. SA-09-CA-949-FB, 2010 WL
11597848, at *2 (W.D. Tex. Apr. 14, 2010).
Specifically, Judge Biery held that Martin was
“BARRED from filing in this Court or removing to
this Court any lawsuit regarding or related to,
directly or indirectly, the subject properties or tax
indebtedness thereon until the $ 1,000 is fully paid
into the registry of the Court.” Id. Despite this
admonishment, in March 2017, Martin removed a
second tax action involving the King Estate—the
2014 Tax Case now before the Court—to federal
court based on a state-court filings in which he
appeared to allege civil rights violations against the
Tax Authorities under inter alia, 42 U.S.C. § 1982,
and/or 28 U.S.C. § 1443. See Cnty: Of Bexar v.
Martin, No. 5:17-CV-219-DAE, 2017 WL
4510598, at *3 (W.D. Tex. May 5, 2017). After
40
ensuring that Martin had satisfied the monetary
penalties imposed by Judge Biery, Judge Ezra
granted the Tax Authorities’ motion to remand,
again noting that Martin could not “create
removability through a [federal] defense or
counterclaim to a state court petition.” Id. (citing
Aetna Health Inc. v. Davila, 542 U.S. 200, 207
(2004)).
Now, over five years later, Martin, proceeding
pro se, has again removed the 2014 Tax Suit to
federal court. See ECF No. 1. The Notice of
Removal invokes federal question jurisdiction
under 28 U.S.C. § 1331, because the state court
“deprived Defendant due process of law by
granting a motion that contained a backdated
notice of service, in violation of the Fourteenth
Amendment due process clause.” ECF No. 1 at 2.
In his Amended Notice of Removal, Martin
identifies two “other papers” that “further
substantiate the validity of the removal on federal
question grounds.” ECF No. 7. Specifically, he
points to his recent “discovery” of two documents
which asserts establish “a substantial federal
question arising from the use of sham litigation to
attack [his] constitutionally [sic] property rights”:
(1) a Plea to Jurisdiction filed in the 2014 Tax Suit
on July 31, 2017, by Martin’s former attorney,
Edward Bravenec, who later obtained title to some
of Martin’s property through foreclosure in 2006;
and (2) a letter from the Tax Authorities notifying
41
Martin that a trial court setting had been dropped
from the state court tax docket (based on the
removal to this Court). Id. at 2-3. Martin appears
to assert that the Bravenec pleading is “evidence of
a False Claim Act violation,” that the Tax
Authorities lost their standing to sue by dropping
the state-court trial setting, and that the other
papers are evidence of anticompetitive “sham
litigation,” evidently implying a violation of
federal antitrust law.
The Tax Authorities filed a motion for remand
on May 18, 2022, arguing that the removal was
untimely, failed to establish a basis for federal
question jurisdiction, and was barred by the Tax
Injunction Act, ECF No. 8. In lieu of a response to
the Tax Authorities’ motion, Martin filed a
“Motion For A More Definite Statement On
Mootness And On Eligibility For American
Rescue Plan Grants,” seeking, “pursuant to Rule
12(e),” to: compel Plaintiffs to provide a more
definite statement to justify their motion for
remand dated May 18, 2022 in light of legal
developments that bear on the availability of a
plain, speedy and efficient state court remedy. See,
Ohio v. Yellen, 539 F. Supp. 3d 802 (D.C. OH.,
May 12, 2022) (Ohio judgment holding American
Rescue
Plan
Tax
Mandate
guidelines
unconstitutional). ECF No. 10 at 1. Martin appears
to suggest that the Tax Authorities’ methods for
prosecuting ad valorem tax claims and certain
42
proposed remedies
in
unconstitutional. Id. at 8-10.
such
cases
are
On June 7, 2022, Martin filed a “Second
Amended Notice of Removal " and motion to
consolidate this action with Edward Bravenec, et
al.
v.
Rowland
J.
Martin, Jr., No.
SA:22-CV522-JKP (W.D. Tex.) (the “Bravenec
Action ") (ECF No. 11). The Bravenec Action was
originally filed as Case No. 2014 CI-07644 in the
285th Judicial District of Texas. Edward Bravenec
filed his original petition on May 13, 2014,
alleging a claim for tortious interference with
contractual relations based on Martin’s continued
filings of notices of lis pendens and other
documents in state court, which had prevented the
sale of the property Bravenec had obtained from
Martin. Martin v. Bravenec, No. 04-14-00483-CV,
2015 WL 2255139, at *2 (Tex. App,
San
Antonio, May 13, 2015, pet. denied)12. Although
12 In 2010, Martin filed a lawsuit in federal district court
against Bravenec and others alleging numerous causes of
action challenging the foreclosure of the property. Martin v.
Bravenec, No. 5:ll-cv-414-XR, ECF No. 1 (W.D. Tex. Oct.
4, 2010). The federal district court granted summary
judgments in favor of all the defendants and entered a take
nothing judgment on December 21, 2012. Id., ECF No.
114. In the summary judgment granted in favor of
Bravenec, the federal district court ordered Martin to show
cause why monetary sanctions should not be imposed
against him for: “(1) repeatedly filing lawsuits for the
purposes of harassment and the needless increase of
43
the case appears to have been closed in 2014,
Martin removed the case to federal court on May
23, 2022, invoking federal question jurisdiction.
Bravenec, No. SA:22-CV-522-JKP, ECF No. 1. On
May 31, 2022, Bravenec sent Martin a letter
threatening to move for Rule 11 sanctions based on
the unwarranted removal of the Bravenec Action.
See ECF No. 11 at 17. In the Second Amended
Notice of Removal in the instant action, Martin
asserts that the letter further supports removal as a
violation of his “right to free speech” and the
“right to petition” afforded under the First
Amendment. Id. at 5-14.
On June 16, nearly a month after the Tax
Authorities filed their motion to remand, Martin
litigation costs; and (2) continuing to assert claims that he
knows are non-meritorious.” Id. at 3-4.
On February 1, 2013, the federal district court
entered an order imposing sanctions by directing the district
clerk’s office not to accept for filing any further motions
filed by Martin in that case or any new pro se complaints
without the prior written approval of a district judge. Id.,
ECF No. 129. The federal district court's order stated:
The Court observes that for years Plaintiff has
engaged in a campaign of harassing, frivolous, and
duplicative litigation. His lawsuits have served no purpose
other than to increase the litigation costs of the Defendants
and waste judicial resources. The Court finds that it is
necessary to take some action to curtail the Plaintiff’s
propensity to burden the Court with meritless litigation.
44
filed his “Objections and Exceptions” to the Tax
Authorities’ motion. See ECF No. 14.2 Martin
subsequently a motion to dismiss the underlying
2014 Tax Suit (ECF No. 17), followed by an
amended motion (ECF No. 18), and two
“Motion[s] to Dismiss Plaintiffs’ Motion for
Remand” (ECF Nos. 21, 21). On July 1, 2022, the
Court granted the Tax Authorities’ motion to stay
consideration of Martin’s motion to dismiss
pending resolution of the motion to remand now
before the Court.
DISCUSSION.
Legal Standards
On a motion to remand, a court must consider
whether removal to federal court was proper.
Removal is proper in any “civil action brought in a
State court of which the district courts of the
United States have original jurisdiction.” 28 U.S.C.
§ 1441(a). The removing party bears the burden of
showing that federal jurisdiction exists and that
removal was proper. De Aguilar v. Boeing Co., 47
F.3d 1404, 1408 (5th Cir. 1995).
District courts have original jurisdiction over
civil cases “arising under the Constitution, laws, or
treaties of the United States.” See 28 U.S.C. §
1331. If a plaintiff’s state-law claims arise under
federal law such that they support federal question
45
jurisdiction, they may not be remanded to state
court. Ordinarily, determining whether a particular
case arises under federal law turns on the
“well-pleaded complaint” rule. Caterpillar, Inc. v.
Williams, 482 U.S. 386, 392 (1987). A plaintiff is
master of his complaint and may generally allege
only a state-law cause of action even where a
federal remedy is also available. Id. That federal
law might provide a defense to a state-law claim
does not create federal question jurisdiction. Elam
v. Kansas City S. Ry. Co., 635 F.3d 796, 803 (5th
Cir. 2011).
An exception to the well-pleaded complaint
rule exists, however, where Congress “so
completely preempts[s] a particular area that any
civil complaint raising this select group of claims
is necessarily federal in character.” Metro. Life Ins.
Co. v. Tavlor. 481 U.S. 58, 63-64 (1987). “This
narrow
exception—the
artful
pleading
doctrine—permits the court to look beyond the
face of the plaintiff’s complaint to determine if
federal law ‘so forcibly and completely displace[s]
state law that the plaintiff’s cause of action is
either wholly federal or nothing at all.’” Meisel v.
USA Shade & Fabric Structures Inc.. 795 F. Supp.
2d 481, 485 (N.D. Tex. 2011) (quoting Caryenter
v. Wichita Falls Indep. Sch. Dist.. 44 F.3d 362, 366
(5th Cir. 1995)). “The question in complete
preemption analysis is whether Congress intended
the federal cause of action to be the exclusive
46
cause of action for the particular claims asserted
under state law.” Elam, 635 F.3d at 803.
Thus, complete preemption creates federal
question jurisdiction, while ordinary preemption
does not. “Ordinary” preemption, also known as
“defensive” or “conflict” preemption, “arises when
a federal law conflicts with state law, thus
providing a federal defense to a state law claim,
but does not completely preempt the field of state
law so as to transform a state law claim into a
federal claim.” Arana v. Ochsner Health Plan. 338
F.3d 433, 439 (5th Cir. 2003) (en banc); see also
Elam. 635 F.3d at 803 (“Defensive preemption
does not create federal jurisdiction and simply
‘declares the primacy of federal law, regardless of
the forum or the claim.’”) (quoting Beneficial Natl
Bank v. Anderson. 539 U.S. 1, 5 (2003)). “As a
general matter, complete preemption is less
common and more extraordinary than defensive or
ordinary preemption.” Elam, 635 F.3d at 803.
“Indeed, complete preemption is a ‘narrow’
exception to the well-pleaded complaint rule.” Id.
Even an obvious federal preemption defense does
not, in most cases, create removal jurisdiction.
Beers v. N. Am. Van Lines. Inc.. 836 F.2d 910, 913
n.3 (5th Cir. 1988). “[T]he prudent course for a
federal court that does not find a clear
congressional intent to create removal jurisdiction
[is] to remand the case to state court.” Taylor, 481
47
U.S. at 67 (Brennan, J., concurring) (emphasis in
original).
II. Analysis
Yet again, Martin is attempting to create federal
question jurisdiction where it does not exist. Each
of the federal laws Martin identifies in his various
notices of removal (ECF Nos. 1, 7, 11) and other
filings opposing remand (ECF Nos. 10, 11,
14)—the Due Process Clause, the First
Amendment, the False Claims Act, and,
apparently, federal antitrust law—are raised as a
defense to Martin’s liability in the 2014 Tax Suit.
As Martin has been reminded time and again,
however, the existence of a federal defense to a
state-law claim does not create federal question
jurisdiction. Elam, 635 F.3d at 803.
Moreover, there is no evidence of “clear
congressional intent to create removal jurisdiction”
of ad valorem tax suits that could establish
complete preemption. Taylor, 481 U.S. at 67.
Indeed, the Tax Injunction Act, 28 U.S.C. § 1341,
suggests that Congress took precisely the opposite
view: that principles of comity counsel against
federal court interference with state court tax
proceedings. The Tax Injunction Act (“TIA”)
precludes a federal district court from “enjoin[ing],
suspending] or restraining] the assessment, levy
or collection of any tax under State law where a
48
plain, speedy and efficient remedy may be had in
the courts of such State.” 28 U.S.C. § 1341. The
TIA is a “broad jurisdictional impediment to
federal court interference with the administration
of state tax systems.” Home Builders Ass’n of
Miss., Inc. v. City of Madison, 143 F.3d 1006,
1010 (1998) (quoting United Gas Pipe Line Co. v.
Whitman, 595 F.3d 323, 326 (5th Cir. 1979)). The
statute reflects “the fundamental principle of
comity between federal courts and state
governments that is essential to ‘Our Federalism,’
particularly in the area of state taxation.” Fair
Assessment in Real Estate Ass’n, Inc. v. McNary,
454 U.S. 100, 103 (1981).
The TIA bars federal district courts from
granting declaratory as well as injunctive relief in
cases challenging state tax systems. California v.
Grace Brethren Church, 457 U.S. 393,408 (1982).
Taxpayers also are barred by the principles of
comity from asserting § 1983 actions against the
validity of state tax systems in federal court.
McNary, 454 U.S. at 116. Thus, the TIA bars the
district court from asserting jurisdiction unless the
State fails to supply a plain, speedy and efficient
remedy for the taxpayer’s claim. Smith v. Travis
County. Educ. Dist., 968 F.2d 453, 456 (5th Cir.
1992). For the statute to apply, two conditions
must be met: (1) the law at issue must be a tax, as
opposed to a regulatory fee, and (2) the state court
49
must be “equipped to furnish the plaintiffs with a
plain, speedy, and efficient remedy.” Id.
Martin seeks to invalidate the tax assessment
on his property on federal constitutional and other
grounds. See ECF Nos. 1, 8, 11. The Fifth Circuit
has addressed the adequacy of Texas remedies
under § 1341 for such claims, and have found them
to be “plain, speedy and efficient.” See McQueen
v. Bullock, 907 F.2d 1544, 1548 n.9 (5th Cir.
1990). Because Texas state courts provide a
procedural vehicle for taxpayers’ federal
constitutional claims, including a “full hearing and
judicial determination, with ultimate review
available in the United States Supreme Court,”
Texas provides an adequate remedy for Martin’s
constitutional claims and defenses as well. Smith,
968 F.2d at 456.
For the foregoing reasons, the Court concludes
that it lacks subject matter jurisdiction over the
2014 Tax Suit and, accordingly, that the Tax
Authorities’ motion to remand (ECF No. 8) must
be GRANTED.
III.
Potential Rule 11 Sanctions
A district court may sanction a party, including
a pro se litigant, under Rule 11 if it finds that the
litigant filed a pleading for an improper purpose or
that the pleading was frivolous. See FED. R. CIV.
50
P. 11(b) and (c); Whittington v. Lynaugh, 842 F.2d
818, 820-21 (5th Cir. 1988). The court may sua
sponte order a party to show cause why conduct
specifically described in the order has not violated
Rule 11(b). See Marlin v. Moody National Bank,
N.A., 533 F.3d 374, 378 (5th Cir. 2008) (citing
FED. R. CIV. P. 11(c)(3)). Although the district
court need not hold a hearing, it must provide the
litigant notice of the proposed sanctions and the
opportunity to be heard to satisfy Rule 11 and the
Due Process Clause. See Merriman v. Sec. Ins. Co.
of Hartford, 100 F.3d 1187, 1191-92 (5th
Cir. 1996).
Martin is hereby notified that the Court is
considering imposing sanctions sua sponte against
him for violating his Rule 11(b) obligations,
including potential monetary sanctions and a pre
filing injunction prohibiting Martin from filing or
removing any civil action in the San Antonio
Division the United States District Court for the
Western District of Texas unless he first seeks
leave and obtains permission from a district judge
in this district.
The Court has determined that Plaintiff has
likely violated Rule 11(b). When he removed the
2014 Tax Suit to federal court for the second time,
Martin had been reminded on multiple occasions
that federal defenses do not create federal subject
matter jurisdiction. See Cnty. Of Bexar v. Gilliam,
51
No. SA-09-CA-949-FB, ECF No. 14 at 6 (W.D.
Tex. Mar. 3, 2010); Cnty. Of Bexar v. Martin, No.
5:17-CV-219-DAE, 2017 WL 4510598, at *3
(W.D. Tex. May 5,2017).
While this removal may seek to invoke different
federal defenses to the tax assessment than those
raised in his previous attempts to remove state tax
cases to federal court, Martin has not identified any
ensuing change in the underlying law that a federal
defense to a state-law claim does not create federal
question jurisdiction. The Court cannot state it
more clearly: this state court property tax case does
not belong in federal court. In addition to
repeatedly advancing these clearly meritless and
frivolous arguments, Martin has in the time since
removal filed nearly a dozen motions, responses,
objections, and other documents totaling
approximately 400 pages.
The Court cannot discern any purpose for these
various filings other than harassment and delay.
Accordingly, the Court will require Plaintiff to
show cause why sanctions should not be imposed
against him for violation of Rule 11.
CONCLUSION
Tax Authorities’ motion to remand (ECF No.
8) is GRANTED. This case is therefore
REMANDED pursuant to 28 U.S.C. § 1447(c), (d)
52
for lack of subject matter jurisdiction. The Clerk is
directed to REMAND this case to the 45th District
Court of Bexar County, Texas pursuant to 28
U.S.C. § 1447(d) and to close this case.
IT IS FURTHER ORDERED that all other
pending motions, including Defendant’s motion for
a more definite statement (ECF No. 10), motion to
consolidate this case with the Bravenec Action
(ECF No. 11), amended motion to dismiss (ECF
No. 18), and amended motion to dismiss the
motion to remand (ECF No. 22) are MOOT.
IT IS FURTHER ORDERED that Martin’s
response to the motion for remand (ECF No. 14) is
STRICKEN as untimely and for exceeding the
page limit without leave of this Court.
IT IS FURTHER ORDERED that, within 21
days of the filing of this Order, Martin shall show
cause why monetary sanctions should not be
imposed against him pursuant to Rule 11(a).
It is so ORDERED.
SIGNED this 18th day of July, 2022.
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE
53
APPENDIX D3 - ORDER OF THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF TEXAS DATED
AUGUST 24, 2022
Text Order DENYING 26 Motion for Relief from
Court's Remand Order entered by Judge Xavier
Rodriguez. The Court has already remanded this
case for lack of subject matter jurisdiction, Dkt.
No. 24 , and jurisdiction has been returned to the
state court, Dkt. No. 25 . Section 1447(d) of Title
28 provides that ”[a]n order remanding a case to
the State court from which it was removed is not
reviewable on appeal or otherwise." "This
language has been universally construed to
preclude not only appellate review but also
reconsideration by the district court." Seedman v.
United States Dist. Court for Cent. Dist. of Calif.,
837 F.2d 413, 414 (9th Cir. 1988) (citing cases).
Section 1447(d)'s preclusion of review of any kind
applies to all remand orders issued under § 1447(c)
and invoking the grounds specified therein,
including specifically a lack of subject matter
jurisdiction.
Thermtron
Prods.,
Inc.
v.
Hermansdorfer, 423 U.S. 336, 346 (1976). Such
remand orders are non-reviewable even if
erroneous, once the clerk of court mails the
certified copy of the remand order, which divests
the district court of jurisdiction. Id. at 351; Shapiro
v. Logistec USA, Inc., 412 F.3d 307, 310 (2d Cir.
2005); Arnold v. Garlock, Inc., 278 F.3d 426, 437
54
(5th Cir. 2001) (”[E]ven if it later decides the order
was erroneous, a remand order cannot be vacated
even by the district court."); see also Bender v.
Mazda Motor Corp., 657 F.3d 1200 (11th Cir.
2011) (review by Rule 60 motion barred by section
3447(d)). Here, the Court remanded for lack of
subject matter jurisdiction under § 1447(c). See
Dkt. No. 24 . The remand order is not reviewable,
even if erroneous, because the certified copy has
been mailed. See Dkt. No. 28 . The Court no
longer has jurisdiction in this case and further
motions will be summarily denied. To the extent
that Plaintiff seeks relief from the Court's show
cause order, the Court observes that it has not
imposed Rule 11 sanctions on Martin, and,
accordingly, he has no need for relief (This is a
text-only entry generated by the court. There is no
document associated with this entry.) (cb)
(Entered: 08/24/2022).”
55
APPENDIX Cl: ORDER OF THE TEXAS
FOURTH DISTRICT OF APPEALS DATED
DECEMBER 4, 2014
(CATHERINE STONE, CHIEF JUSTICE)
Fourth Court of Appeals
San Antonio, Texas
December 4, 2014
No. 04-14-00483-CV
Rowland MARTIN, Jr.,
Appellant
v.
Edward L. BRAVENEC and 1216 West Ave., Inc.,
Appellees
From the 285th Judicial District Court, Bexar
County, Texas
Trial Court No. 2014-CI-07644
Honorable Dick Alcala, Judge Presiding
ORDER
Pending before the court are appellant’s motion for
rehearing, appellees' response to appellant's motion
for rehearing, and appellant’s supplemental motion
for rehearing and motion for sanctions. Appellant's
motion for rehearing is GRANTED. This court's
prior opinion and judgment dated October 1, 2014,
56
are WITHDRAWN, and this case is REINSTATED
on the docket of this court. Appellant's
supplemental motion for rehearing and motion for
sanctions are DENIED.
Appellees' request for alternative relief contained
in appellees' response to appellant's motion for
rehearing is GRANTED IN PART. Based on this
court's review of the clerk's record and the
supplemental notices of appeal filed in this court
which have been forwarded to the trial court clerk,
see TEX. R. APP. P. 25.1(a), this court construes
this appeal as an accelerated, interloc~ory appeal
from: (1) the trial court's order dated July 17, 2014,
granting a temporary -injunction..,see TEX. CIV.
PRAC. & REM. CoDE § 51.014(a)(4); and (2) the
trial court's order dated July 17, 2014, denying
appellant's motion to dismiss filed pursuant to
section 27.003 of the Texas Civil Practice and
Remedies Code (Texas Citizens Participation Act),
see id. At § 27.008.
If appellant believes this court has jurisdiction to
consider any other order contained in the clerk's
record in this appeal, appellant is ORDERED to
show cause in writing no later than ten days from
the date of this order why this court has
jurisdiction to consider any other interlocutory
order. Any such response should contain a citation
to a specific statute that gives this court
jurisdiction to consider such interlocutory order. If
57
appellant elects not to file a response to this order,
appellant's brief, which must be in compliance
with TEX. R. APR P. 38.1,
Catherine Stone, Chief Justice
In WITNESS WHEREOF, I have hereunto set my
hand and affixed the seal of the said court on this
4th Day of December, 2014.
Keith Tuttle
Clerk Of The Court
58
APPENDIX C2: ORDER OF THE TEXAS
FOURTH DISTRICT OF APPEALS DATED
DATED MARCH 26, 2014
(ORDER OF JUSTICE JASON K. PULLIAM)
Fourth Court of Appeals
San Antonio, Texas
March 26, 2015
No. 04-14-00483-CV
Rowland MARTIN, Jr.,
Appellant
v.
Edward L. BRAVENEC and 1216 West Ave., Inc.,
Appellees
From the 285th Judicial District Court, Bexar
County, Texas
Trial Court No. 2014-CI-07644
Honorable Dick Alcala, Judge Presiding
ORDER
On March 25, 2015, this court received the
appellant's reply brief. The brief violates Rule 38
of the Texas Rules of Appellate Procedure in that it
contains no index to authorities or citations to the
record, exceeds the page limit and contains
improper certificate of service. While substantial
59
compliance with Rule 38 is sufficient, this court
may require additional briefing or make any other
order necessary for satisfactory submission of the
case, See, TEX R. APR P. 38.9(a).
It is therefore ORDERED that appellant file an
amended brief correcting these deficiencies, See,
id. The amended brief is due within seven days
from the date of this order. If an amended brief is
not timely filed, this court may prohibit the filing
of another brief and proceed without the brief, or
if the amended brief is not compliant with Rule
38, this court may strike brief and proceed without
further filing, See, TEX. R. APP. P. 42.3(c)
Jason Pulliam, Justice
In WITNESS WHEREOF, I have hereunto set my
hand and affixed the seal of the said court on this
26th Day of March, 2015.
Keith Tuttle
Clerk Of The Court
60
APPENDIX D: LETTER OF THE PATENT
AND TRADEMARK OFFICE ON MICRO
ENTITY STATUS DATED MAY 1, 2019
United States Patent and Trademark Office
Rowland Martin
Attn: Rowland Martin
951 Lombrano
San Antonio, Tx
Dear Sir/Madam,
2019
May 01,
The United States Patent and Trademark Office
(US PTO) has reviewed your refund request for
Reference Number 13026246"- Refund Request ID
REFND-20181217-00030. Beloi,y is the current
status of your refund request assigned to the
following processing area: Office of Petitions
Fee Code
1999
Decision
Dismissed
Decision
Reasons
1.29)
Micro Entity status was not filed
prior to or with payment (37 CFR
Refund Amount
$0.00
61
Please refer to the following page to review the
detailed dismissal reason(s).
You will receive a separate decision letter for any
additional fee codes assigned to other processing
areas, if applicable. Decisions may be subject to
change if an error is identified.
For questions related to this refund request, contact
the Office of Petitions Helpdesk at (571)
272-3282.
Thank you
Refund Branch
Enclosure: Refund Dismissal Reason
62
APPENDIX E: BEXAR COUNTY DEED
RECORD FOR 1216 WEST AVE.
THIRD PARTY PURCHASE MONEY
VENDOR’S LIEN
LIEN TRANSACTION;
DATE:
October 31, 2003 (Deed
Records Volume 10406, Pages 1601 and 1606).
SUBJECT
PROPERTY; 1216 West Ave., City San Antonio
and County of Bexar, Texas
GRANTOR:
Morocco Ventures, LLC.
GRANTEE AND
OWNER:
Rowland J. Martin, Jr.
THIRD PARTY BENEFICIARIES
AND INDEMNITEES:
Estate of Johnnie Mae King, Probate Case No.
2001-PC-1263 and Nicolas Williams.
MAILING ADDRESS:
Antonio, Texas 78207
951 Lombrano, San
63
PURPOSE OF THE
RECORDING: This re-recording of the
lien interest created on October 31, 2003
memorializes the property interests that vested in
the Owner on that date for ease of reference in
on-going judicial proceedings. It is expressly
disclaimed that the line was first created on
October 14, 2015.
CONSIDERATION: The lien re-recorded
Herein is claimed against the grantor, Morocco
Ventures, LLC, and all those claiming under the
grants recorded as the (First) Deed of Trust to Roy
Ramspeck and Annette G. Hanson, and as the
(Second) Deed Of Trust to Albert McKnight and
The
Edward
Bravenec.
lien constitutes
consideration for a payment in the amount of
$135,000, which was made by the Owner, in his
individual capacity, to Roy Ramspeck and Annette
G. Hanson as a credit to enable the grantor and
debtor entity, Mo.roco Ventures, LLC, to acquire
the subject property for a purchase price of
$284,500. The lien is referenced in the Warranty
Deed with Vendor's Lien recorded in Volume
10406
Page
1601
as
"other valuable
consideration," and is further referenced in the
64
(First) Deed Of Trust recorded in Volume 10406
Page 1606, in the section on "Other exceptions to
Conveyances and Warranty," by way of express
words of reservation stating that the conveyance is
subject to "other than liens and conveyances," and
in paragraph 14 of "General Provisions," where it
is expressly stated that "The creation of a
subordinate lien ... will not entitle Beneficiary to
exercise the remedies provided" for the
acceleration of the note. Consideration was given
by Albert McKnight and Edward Bravenec, during
an attorney client 'relationship in Probate Case No.
2001-PC-1263, In the Second Deed Of Trust
granted by Morocco Ventures, LLC in Document
#20050099395 on Mays, 2005, by way of "Prior
Lien reservations, and by way of the stipulation in
paragraph 4 of the "General Provisions, with
limitations on the second lien stating that "This
lien shall remain superior to liens created later[]."
PROPERTY DESCRIPTION: The property
commonly known as 1216 West Ave, in San
Antonio, Texas, is legally described as "Lots 1, 2,
and 3, Block SO, new City Block 8806, LOS
ANGELES HEIGHTS," and as further described in
the attachment to this record.
65
Book 17508 Pase 1659 3pgs
[Page 1]
RETROACTIVE
RESERVATIONS
EXCEPTIONS TO CONVEYANCES
WARRANTIES:
AND
AND
1. Until further notice, the lien interest herein
re-recorded is subject to the indemnification
obligations set forth in the Heirship Settlement
Agreement in Probate Case No. 2001-PC-1263. It
is declared that any and all interests in title claimed
under the second deed of trust granted to Albert
McKnight and Edward Bravenec are subject to the
priority assigned by law to the vendors' lien herein
recorded. The latter is made executory and inferior
in relation to the purchase money lien by virtue of
contractual exceptions to the conveyance in the
first deed of trust, to wit: "all rights, obligations,
and other matters emanating from and existing by
reason of the ... operation of any governmental
district, agency or authority," Bexar County Deed
Records, Vol. 10406 Page 1607. By virtue of
express provisions that subject the second deed of
trust to the first deed of trust, Owner claims
equitable title under DTND Sierra Investments v.
66
HSBC Bank U.S.A., Case No. 14-51142 (5m Cir.,
2015). a court decision which by operation of law
renders the interests acquired by Albert McKnight
and Edward Bravenec by foreclosure on October 3,
2006 executory and inferior in relation to the lien
herein re-recorded.
2. It is declared that deed transfers from Albert
McKnight and Edward Bravenec to assignees and
successors in interest, including 1216 West Ave.,
Inc., Edward Bravenec, and Torralba Properties,
Inc., are subject to the notice of lis pendens, and
future amendments thereto if any, which was
referenced in the decision of the Texas Fourth
District Court Of Appeals in Martin v. Bravenec, et
al, Case No. 04-14 00483-CV, 2015 WL 2255139
(Tex. App. - San Antonio, rehearing denied June 8,
2015).
3. The owner disclaims liability for the recording
of notices of lis pendens under authority of the
decision of the U.S. Court of Appeals for the Fifth
Circuit in Martin v. Bravenec, et al, Case No.
14-50093 (5th Cir., judgment filed October 2,
2015), wherein the court vacated the order of the
U.S. District Court in Case No. SA ll-CV-0414
67
dated December 27, 2013, on abuse of discretion
and due process grounds.
4. The Owner received a leasehold interest in the
subject property in lieu of monetary consideration
which was recorded in the records of the Bexar
County Appraisal District as a homestead.
Dated: October 14, 2015
fsl
Rowland J. Martin
STATE OF TEXAS
COUNTY OF BEXAR
This instrument was acknowledged before me on
the 14th day of October 2015, by Rowland J.
Martin in his capacity as a third party purchase
money lien creditor of the limited liability
company known as Moroco Ventures, LLC, whose
charter is presently inactive.
CHARLCYE LANAE GLENWINKEL
Notary Public, State ot Texas
My commission Expires: June 02. 2019
/s/
Notary Public, State of Texas
68
APPENDIX F:
CONSTITUTIONAL AND STATUTORY
PROVISIONS
Article I, Section 8, Clause 8:
The Congress shall have Power ... To promote the
Progress of Science and useful Arts, by securing
for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and
Discoveries.
Amendment V:
No person shall ... be subject for the same offense
to be put twice in jeopardy ... nor be deprived of
life, liberty, or property, without due process of
law; nor shall private property be taken for public
use, without just compensation.
Article VI, Paragraph 2:
This Constitution, and the laws of the United
States which shall be made in pursuance thereof;
and all treaties made, or which shall be made,
under the authority of the United States, shall be
the supreme law of the land; and the judges in
every state shall be bound thereby, anything in the
Constitution or laws of any State to the contrary
notwithstanding.
69
Amendment X
The powers not delegated to the United States by
the Constitution, nor prohibited by it to the States,
are reserved ... to the people.
28 U.S.C. 1295(a)(1)
The United States Court of Appeals for the Federal
Circuit shall have exclusive jurisdiction— ...of an
appeal from a final decision of a district court of
the United States ... in any civil action arising
under, or in any civil action in which a party has
asserted a compulsory counterclaim arising under,
any Act of Congress relating to patents or plant
variety protection.
28 U.S.C. 2674
The United States shall be liable, respecting the
provisions of this title relating to tort claims, in the
same manner and to the same extent as a private
individual under like circumstances, but shall not
be liable for interest prior to judgment or for
punitive damages ...
With respect to any claim under this chapter, the
United States shall be entitled to assert any defense
based upon judicial or legislative immunity which
otherwise would have been available to the
70
employee of the United States whose act or
omission gave rise to the claim, as well as any
other defenses to which the United States is
entitled ...
TEXAS TAX CODE Section 33.05(b)
b) A tax delinquent for more than the limitation
period prescribed by this section and any penalty
and interest on the tax is presumed paid unless a
suit to collect the tax is pending.
(c) If there is no pending litigation concerning the
delinquent tax at the time of the cancellation and
removal, the collector for a taxing unit shall cancel
and remove from the delinquent tax roll:
a tax on real property that has been
(i)
delinquent for more than 20 years;
a tax on personal property that has been
delinquent for more than 10 years; and
(2)
a tax on real property that has been
delinquent for more than 10 years if the property
has been owned for at least the preceding eight
years by a home-rule municipality in a county with
a population of more than 3.3 million.
(3)
71
TEXAS TAX CODE Section 32.05(c)
(c) A tax lien provided by this chapter is inferior
to:
(1) a claim for any survivor's allowance, funeral
expenses, or expenses of the last illness of a
decedent made against the estate of a decedent as
provided by law;
(2) except as provided by Subsection (b)(2), a
recorded restrictive covenant that runs with the
land and was recorded before January 1 of the
year the tax lien arose; or
(3) a valid easement of record recorded before
January 1 of the year the tax lien arose.
72
APPENDIX F: EXCERPTS FROM THE
ORAL ARGUMENT TRANSCRIPT IN OIL
STATES ENERGY SERVICES
Excerpt #1:
Transcript Pages 31-34
CHIEF JUSTICE ROBERTS: So your your position, it strikes me, is simply that
you've got to take the bitter with the sweet.
If you want the sweet of having a patent,
you've got to take the bitter ...
MR. RISE: Yes - yes, Mr. Chief Justice.
Excerpt #2: Transcript Pages 45 - 46
CHIEF JUSTICE ROBERTS: Well, haven't
our cases rejected that — that proposition?
I'm thinking of the public employment cases,
the welfare benefits cases. We've said you you cannot put someone in that position. You
cannot say, if you take public employment, we
can terminate you in a way that's inconsistent
with due process.
MR. KISE: I — I don't think,
respectfully, Mr. Chief Justice, this is
inconsistent with due process. I also think
that the scheme itself is set up so that these
rights are taken subject to the power of
Congress to determine patentability.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.