Petition for Writ of Certiorari — H & R Block, Inc. v. Anderson

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” 02 312 aue 27 2002

In The

Supreme Court of the Gnited States

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H&R BLOCK, INC.,

Petitioner,

v.

MARIE ANDERSON, ET AL..,

Respondents.

ry

v

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

¢

PETITION FOR WRIT OF CERTIORARI

OF PETITIONER H&R BLOCK, INC.

¢

A. INGE SELDEN III PETER S. FRUIN

STEPHEN C. JACKSON MAYNARD, COOPER &

Counsel of Record GALE, P.C.

CARL S. BURKHALTER 201 Monroe Street

JULIE L. WILSON Suite 1940

MAYNARD, COOPER & Montgomery, Alabama

GALE, P.C. 36104-3720 —

2400 AmSouth/Harbert Plaza

1901 Sixth Avenue North

Birmingham, Alabama

35203-2618 |

(205) 254-1000

Attorneys for Petitioner H&R Block, Inc.

QUESTION PRESENTED FOR REVIEW

Whether the Court of Appeals for the Eleventh Circuit

erred when it failed to hold, in direct conflict with the

Court of Appeals for the Eighth Circuit and in contraven-

tion of Supreme Court authority, that usury claims against

a national bank necessarily arise under Section 30 of the

National Bank Act, 12 U.S.C. §§ 85-86, providing the

district court with removal jurisdiction under the doctrine

of complete preemption?

ii

PARTIES TO THE PROCEEDING BELOW

Defendants-Appellees: Beneficial National Bank, Inc.,

Beneficial Tax Masters, Inc. and H&R Block, Inc.

Plaintiffs-Appellants: Marie Anderson, Alvester

Brafort, Walter Brutley, Patricia Coleman, Talaya Cope,

Audrey Darby, Annie Davis, April DeLoach, Diane Frank-

lin, Lillie Franklin, Willie Lewis, Caledonia Jackson,

Shirley Jernigan, Evelyn Nelson, Willie Lawrence, Mamie

Mitchell, Betty Person, Diane Peterson, Gwen Rogers,

William Screws, Ernestine Starks, Gerald Stokes, Albert

Thomas, Charles Thomas, Kenneth Williams, and Earline

Young.

RULE 29.6 STATEMENT

There is no parent or publicly held company that owns

10% or more of H&R Block, Inc.’s stock.

ili

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW. ................ i

PARTIES TO THE PROCEEDING BELOW ............. ii

RULE 29.6 STATEMENT. ..............cccssccsscccssserssceessees ii

TABLE OF AUTHORITIES ...............seeecssssseeneeeeeeeees Vv

OPINIONS BELOW. .........cccccsosccocsccssccsccesscssscescesccees 1

STATEMENT OF JURISDICTION ................ceeeeeeeees 1

PERTINENT PROVISIONS ..............ccceeceeeeeeeeeneeeens 1

STATEMENT OF THE CASE ..............::ccccsseeeeeeeeneers 1

REASONS FOR GRANTING THE WRIT................. 4

I. THERE IS A CONFLICT IN THE CIRCUITS

CONCERNING WHETHER THE NATIONAL

BANK ACT COMPLETELY PREEMPTS

STATE LAW USURY CLAIMS AGAINST NA-

TIONAL BANKS THAT SHOULD BE RE-

SOLVED BY THIS COURT ...........::cesceeeseeeeeeees 5

A. The Complete Preemption Doctrine......... 5

B. The Court of Appeals’ Decision Directly

Conflicts With Decisions of the United

States Court of Appeals for the Eighth

RI inca Vaceivensconenenavetaunvastsncertineveteaes 9

C. Other Circuits Have Addressed Complete

Preemption by the National Bank Act in

Conflicting Decisions. ...............:cceseeeeeenees 12

D. Resolution of the Conflict is Essential ..... 13

iv

TABLE OF CONTENTS -— Continued

Page

Il. THE ELEVENTH CIRCUITS HOLDING

THAT THE NATIONAL BANK ACT DOES

NOT COMPLETELY PREEMPT STATE LAW

USURY CLAIMS AGAINST NATIONAL

BANKS IS FLATLY INCONSISTENT WITH

NUMEROUS RULINGS OF THIS COURT,

WHICH HAVE HELD THAT USURY CLAIMS

AGAINST NATIONAL BANKS NECESSAR-

ILY ARISE UNDER FEDERAL LAW................. 13

A. This Court’s Precedents Establish That |

All Causes of Action For Usury Against

National Banks Necessarily Arise Under

I TIIIIEP iicccecchachsentnenienasenebehedsiacaauniens 13

B. The Modern Complete Preemption Cases

of this Court Compel the Conclusion that

the National Bank Act Completely Pre-

empts State Law Usury Claims Against

PE SII s dicrcisienancdintetiienimannnntenenns 16

C. The Majority’s Test for Complete Pre-

emption, Which Requires a Showing of

Explicit Congressional Intent to Permit

Removal, is Inappropriate....................... 18

CAGE ccincctnncsessessevonentnesnhseneipiinininmeasensintarene 20

ee eee

Vv

TABLE OF AUTHORITIES

Page

FEDERAL CASES

Anderson v. H&R Block, Inc., 132 F. Supp. 2d 948

CES WI SUPINE chiobsdnndemiccsascbidiacbii 5S tenes S i

Anderson v. H&R Block, Inc., 287 F.3d 1038 (11th

RO SE caiesieciccechinnisclenliceclea iin Catia ater ae a 1, 3, 4, 10, 19

Avco Corp. v. Aero Lodge No. 735, 390 U.S. 557

CSIP cnilbiceittedesvantsbansbianlagubinadpiaaaiadcetiae a: aie med ata 7,9, 19

Barnet v. Nat'l Bank, 98 U.S. 555 (1879).............. 11, 14, 17

Battiste v. H&R Block, Inc., 209 F.3d 719 (5th Cir.

SUID evcinndivsntinlcaschxticcbieabiiaicas amicaciasealat tate Nai ical a all 12

Caterpillar, Inc. v. Williams, 482 U.S. 386 PID cicasechens 5,6

Copeland v. MBNA America, 820 F. Supp. 537 (D.

| ee a ee ERE ee rf FMNe TEU 4 Rots MU ak 12

Davis v. Elmira Savings Bank, 161 U.S. 275 (1896)...15, 18

Evans v. National Bank, 251 U.S. 108 (1919)................... 14

Farmers’ & Mechanics Nat'l Bank v. Dearing, 91

Sh i icsiniscnstesccanaamiane ae 10, 14, 15, 17

First Natl Bank v. Nowlin, 509 F.2d 872 (8th Cir.

| eT MN TM hay Ln Le wee wee 11

Franchise Tax Bd. v. Construction Laborers Vaca-

tion Trust, 463 U.S. 1 (1983) ......ccccecccccccccccecceeceees passim

Franklin Nat'l Bank v. New York, 347 U.S. 373

(1954)......ssersscvesssossvssecensssneessecsesesessnvossessesennseens sisaibesindalons 18

Krispin v. May Dept. Stores Co., 218 F.3d 919 (8th

a CERI ET SNORE He ASC REE REE eh 3, 11

M. Nahas & Co. v. First Nat'l Bank, 930 F.2d 608

a ___ ) RRENERME ae cde cael OUND Cea “lay 3, 5, 10, 11

vi

TABLE OF AUTHORITIES -— Continued

Page

Marquette Nat'l Bank v. First of Omaha Serv.

Corp., 489 U.S. 208 (1978) ........ccrccccrrcesssesees 14, 15, 17, 18

McClelland v. Gronwaldt, 155 F.3d 507 (5th Cir.

SP aesevicnrsadescecenesnevsiiebitevnindinsennaisiiisieiussaadeeaieummidacmeianes 6

McCollum v. Hamilton Nat'l Bank, 303 U.S. 245

(Se siccenitunsinkesssecenntunetimaeigeaaaanaiianaaniniel 11

Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58

[RII F Pi.cssissecineneusoncsesaptonsoeneenennasueeneabiaiennsaaamneniand passim

Rivet v. Regions Bank, 522 U.S. 470 (1981) .........ceeeeees 6

Smiley v. Citibank, 517 U.S. 735 (1996)............. eee 15, 17

Spellman v. Meridian Bank, Nos. 94-3203, 94-3204,

94-3215 to 94-3218, 1995 WL 764548 (3d Cir.

Jan. 12, 1996), vacated and set for reh’g en banc,

1996 U.S. App. LEXIS 2506 (3d Cir. Feb. 16,

TIDE a: <nininsnivecnseciinnindbevesbensechiaibulanienisuiaiaaeiaeapieanmniaamatiiei 12

Tiffany v. National Bank, 85 U.S. 409 (1873) ...........ccceeee 18

Watson v. First Union Nat'l Bank, 837 F. Supp. 146

CERES... TEI dickicsnerirsiccrniaiinicanaiaaaenaaaianas 12

FEDERAL STATUTES y

BS UF at DRGs steniticseininninind pecussoevesonensessenes 1

SOU F Bi ioreiisscsecscennkcccaeeenel =e

98 UBC. 3 BOGE sccciconemncaninbasamneenan 5

Employee Retirement Income Security Act (“ER-

ISA”), 29 U.S.C. § 1132(a).......... a nae. yee SD eS NF OA 7

Labor Management Relations Act (“LMRA”), 29

CABG, B Bibi nenneacccctacsavessusseosesiehanemmenincapsnntiasciacamnaannns 7

National Bank Act, 12 U.S.C. §§ 85-86...................... passim

a A i Ta a tn iil ati aint Ha

oF 2 ERE AUTEN eee, eeelte ees

Vii

TABLE OF AUTHORITIES - Continued

Page

OTHER AUTHORITIES

Arthur R. Miller, Artful Pleading: A Doctrine in

Search of Definition, 76 Tex. L. Rev. 1781 (June

PD Sesancstvicicebeniibbaiiebilisieesitehibgtebibdia adoidteaiiasates. sos 6

lt A LR ROE OL LEA AMAA LLL —~—+ med -

1

OPINIONS BELOW

The opinion of the panel of the United States Court of

Appeals for the Eleventh Circuit is reported at 287 F.3d

1038, and is reproduced in the Appendix at pages 1la-22a.

The opinion of the United States District Court for the

Middle District of Alabama is published at 132 F. Supp. 2d

948, and is also included in the Appendix at pages 23a-

32a.

¢

STATEMENT OF JURISDICTION

The judgment of the panel of the United States Court

of Appeals for the Eleventh Circuit was entered on April 3,

2002. A petition for rehearing en banc was denied on May

29, 2002. (Appendix at page 33a). This Court has jurisdic-

tion under 28 U.S.C. § 1254(1) as this is a petition for writ

of certiorari for review of a judgment of a United States

Court of Appeals.

+

PERTINENT PROVISIONS

The relevant provisions of the National Bank Act, 12

U.S.C. §§ 85-86, are set forth in the Appendix to this

petition at pages 34a-35a.

¢

STATEMENT OF THE CASE

This suit arises from tax refund anticipation loans

(“RALs”) that Beneficial National Bank (“Beneficial”) — at

all times pertinent hereto, a national bank chartered

2

under the National Bank Act — made to customers of

subsidiaries and franchisees of H&R Block, Inc. (“Block”).

A RAL is a loan made to a tax preparation service cus-

tomer by a bank in the amount of his or her anticipated

tax refund, less the fees charged by the lender and the tax

preparation service, which files the customer’s tax return

electronically. A RAL enables a taxpayer to receive the

amount of his or her anticipated tax refund, less applica-

ble charges, within just a few days.

The respondents in this case, each of whom received a

RAL from Beneficial, filed a complaint in Alabama state

court on September 19, 2000 against Beneficial, Beneficial

Tax Masters (“Tax Masters”) and Block, alleging that they

were charged excessive and usurious interest under

Alabama statutory and common law on the RALs that

they received from Beneficial.

On October 24, 2000, Block, Beneficial and Tax

Masters timely removed the action to the United States

District Court for the Middle District of Alabama. Juris-

diction was invoked under 28 U.S.C. § 1331 on the

grounds that the action necessarily arose under the laws

of the United States. The respondents filed a motion to

remand the case back to state court on November 22,

2000. The district court denied the motion to remand on

December 14, 2000, finding that the claims of excessive

and usurious interest against Beneficial, a national bank,

necessarily arose under Section 30 of the National Bank

Act, and were therefore completely preempted by the

National Bank Act. Anderson v. H&R Block, Inc., 132

F. Supp. 2d 948 (M.D. Ala. 2000) (see Appendix at pages

23a-32a). The district court certified the issue for inter-

locutory appeal.

Aaa hr ap chi es Bl ing ie

3

On appeal, a panel of the United States Court of

Appeals for the Eleventh Circuit issued a split opinion

reversing the district court’s decision. Anderson v. H&R

Block, Inc., 287 F.3d 1038 (11th Cir. 2002) (see Appendix at

pages la-22a). After analyzing Supreme Court and Elev-

enth Circuit decisions on complete preemption, the major-

ity concluded that “congressional intent is the pivotal issue

in the complete preemption inquiry.” 287 F.3d at 1043-44

(Appendix at p. 10a). The majority noted that in Metropoli-

tan Life Ins. Co. v. Taylor, 481 U.S. 58 (1987), this Court

applied complete preemption to permit removal after

finding a clear congressional intent to permit removal with

respect to the statute in question in that case. Jd. at 1043

(Appendix at p. 8a). The majority acknowledged that the

National Bank Act “was enacted more than a decade

before Congress gave federal courts general federal ques-

tion jurisdiction, more than two decades before the devel-

opment of the well-pleaded complaint rule, and more than

a century before the articulation of the complete preemp-

tion doctrine.” Id. at 1044 (Appendix at p. 10a-1la). The

majority did not, however, find this fact a sufficient basis

to forego a showing of specific congressional intent in the

National Bank Act to permit removal.

The majority ultimately concluded that, with respect

to the National Bank Act, it could not find evidence of

“clear congressional intent to permit removal” of state law

usury claims against national banks. Jd. at 1047 (Appen-

dix at p. 17a). The majority acknowledged that its conclu-

sion was in conflict with the holdings of the United States

Court of Appeals for the Eighth Circuit in M. Nahas & Co.

v. First Nat'l Bank, 930 F.2d 608, 612 (8th Cir. 1991), and

Krispin v. May Dept. Stores Co., 218 F.3d 919, 922 (8th Cir.

2000), which hold that the National Bank Act completely

preempts state law usury claims against national banks.

4

Id. at 1046 (Appendix at p. 14a). The majority stated that

the Eighth Circuit decisions allowed complete preemption

“based solely on well-settled law that [the National Bank

Act] ... provides the exclusive remedy for usury claims

against a national bank.” Jd. (Appendix at 14a-15a). The

majority held a federal statute will not completely pre-

empt a state law claim unless there is also explicit evi-

dence of congressional intent to permit removal. Jd. at

1047 (Appendix at p. 17a).

Block, Beneficial and Tax Masters filed timely peti-

tions for rehearing en banc with the Eleventh Circuit,

which were denied on May 29, 2002. 2

4

Vv

REASONS FOR GRANTING THE WRIT -

The divided Eleventh Circuit panel found that the

National Bank Act, 12 U.S.C. §§ 85-86, does not completely

preempt state law claims of usury and excessive interest

against national banks, and therefore did not provide a

basis for removing respondents’ state-law usury claims to

federal court. The majority based its decision upon the fact

that it could not find sufficient evidence of “clear congres-

sional intent to permit removal” of state law usury claims

against national banks. 287 F.3d at 1047 (Appendix at p.

17a). The majority acknowledged that its holding is in

direct conflict with the decisions of the United States

Court of Appeals for the Eighth Circuit, which hold that

the National Bank Act does completely preempt state law

claims of usury and/or excessive interest against national

banks, thereby permitting removal of such claims to

federal court. The decision also sharply contradicts re-

peated rulings of this Court, which recognize that claims

of usury against national banks necessarily arise under

federal law. Accordingly, this Court’s review is warranted.

_I. THERE IS A CONFLICT IN THE CIRCUITS

CONCERNING WHETHER THE NATIONAL

BANK ACT COMPLETELY PREEMPTS STATE

LAW USURY CLAIMS AGAINST NATIONAL

BANKS THAT SHOULD BE RESOLVED BY

THIS COURT.

The Eleventh Circuit’s interpretation that the com-

plete preemption doctrine does not provide federal juris-

diction in this case is in direct conflict with the United States

Court of Appeals for the Eighth Circuit, which decided in M.

Nahas & Co. v. First Natl Bank, 930 F.2d 608, 612 (8th Cir.

1991), that the complete preemption doctrine applies to

claims under section 30 of the National Bank Act, 12 U.S.C.

§§ 85-86. Before outlining the full scope of this conflict, a

brief description of the concept of complete preemption is

necessary to place the issues in context.

A. The Complete Preemption Doctrine.

Removal of a case from state to federal court is proper

if the case could have been brought originally in federal

court. 28 U.S.C. § 1441(a). Whether the federal court has

the necessary federal question jurisdiction to hear the case

after removal depends on whether the “action aris[es]

under the Constitution, laws, or treaties of the United

States.” 28 U.S.C. § 1831. Under the well-pleaded com-

plaint rule, a court generally must look to the face of the

complaint to determine whether a claim “arises under”

federal law, Caterpillar, Inc. v. Williams, 482 U.S. 386, 392

(1987), and the availability of federal defenses asserted by

6

the defendant will not support removal jurisdiction.

Franchise Tax Bd. v. Construction Laborers Vacation Trust,

463 U.S. 1, 14 (1983).

However, “a plaintiff may not defeat removal by

omitting to plead necessary federal questions in a com-

plaint.” Id. at 23 (citation omitted). Under Supreme Court

case law, an independent “corollary” to the well-pleaded

complaint rule has developed which provides “that Con-

gress may so completely pre-empt a particular area that

any -civil complaint raising this select group of claims is

necessarily federal in character.” Metropolitan Life Ins. Co.

v. Taylor, 481 U.S. 58, 63-64 (1987). Complete preemption

is jurisdictional in nature rather than simply an affirma-

tive defense. As such, it authorizes removal to federal

court even if the complaint is artfully pleaded to include

only state law claims for relief. Rivet v. Regions Bank, 522

U.S. 470, 475 (1981).

According to the Supreme Court, complete preemp-

tion occurs when “the pre-emptive force of a statute is so

‘extraordinary’ that it ‘converts an ordinary state common-

law complaint into one stating a federal claim for purposes

of the well-pleaded complaint rule.’” See Caterpillar, 482

U.S. at 393 (quoting Metropolitan Life, 481 U.S. at 65).

“Because they are recast as federal claims, state law

claims that are held to be completely preempted give rise

to ‘federal question’ jurisdiction and thus may provide a

basis for removal.” McClelland v. Gronwaldt, 155 F.3d 507,

512 (5th Cir. 1998); see also Arthur R. Miller, Artful

Pleading: A Doctrine in Search of Definition, 76 Tex. L.

Rev. 1781, 1794 (June 1998) (“The stated rationale for this

deviation from what is one of the fundamental corner-

stones of federal subject matter jurisdiction is that, in

these cases, federal law not only preempts a state law to

some degree but also substitutes a federal cause of action

for the state cause of action.”) (internal quotation marks

omitted).

In modern decisions applying this concept, this Court

has found complete preemption under two federal stat-

utes: section 301 of the Labor Management Relations Act

(“LMRA”), 29 U.S.C. § 185, and section 502(a) of the

Employee Retirement Income Security Act (“ERISA”), 29

U.S.C. § 1132(a). Significantly, however, this Court has not

held that the complete preemption doctrine is confined

solely to section 301 of the LMRA and section 502(a) of

ERISA.

The opinion that originated the complete preemption

doctrine was Avco Corp. v. Aero Lodge No. 735, 390 U.S.

557 (1968). In Avco, this Court held that a state court

lawsuit to enjoin a defendant union from striking actually

arose under section 301 of the LMRA, which grants federal

jurisdiction for suits alleging violations of collective

bargaining agreements. 390 U.S. at 560. This Court

therefore concluded that the case was removable to federal

court. Id.

Although this Court in the Avco decision provided

little elaboration for its holding, this Court later character-

ized its holding in Auco as follows:

The necessary ground of decision was that the

preemptive force of § 301 is so powerful as to dis-

place entirely any state cause of action “for viola-

tion of contracts between an employer and a

labor organization.” ... Any such suit is purely a

creature of federal law, notwithstanding the fact

that state law would provide a cause of action in

the absence of § 301. Avco stands for the proposi-

tion that if a federal cause of action completely

8

preempts a state cause of action any complaint

that comes within the scope of the federal cause

of action necessarily “arises under” federal law.

Franchise Tax, 463 U.S. at 23-24.

This Court extended the complete preemption doctrine

in Metropolitan Life, 481 U.S. 58. In that case, this Court

relied on Avco to conclude that state claims falling within

the scope of section 502(a) of ERISA are necessarily

federal in character and therefore removable to federal

court. 481 U.S. at 63-64, 67. While recognizing the “well-

pleaded complaint” rule that a federal law defense to a

state law claim is not sufficient to confer federal question

jurisdiction, this Court stated an exception exists where

federal law completely preempts the state law claim. In

this circumstance, a claim is necessarily federal in charac-

ter, despite artful pleading by a plaintiff to avoid the

invocation of federal law. This Court explained:

Federal preemption is ordinarily a federal de-

fense to the plaintiffs’ suit. As a defense, it does

not appear on the face of a well-pleaded com-

plaint and, therefore, does not authorize removal

to federal court. One corollary of the well-pleaded

complaint rule developed in the case law, how-

ever, is that Congress may so completely preempt

a particular area that any civil complaint raising

this select group of claims is necessarily federal

in character.

Metropolitan Life, 481 U.S. at 63-64 (internal citation

omitted).

In the Metropolitan Life decision, this Court noted

that the “complete preemption” exception had historically

applied to claims preempted by Section 301 of the LMRA,

(oe

9

see 481 U.S. at 64 (citing Avco, 390 U.S. 557), but this

Court made clear the complete preemption doctrine is not

limited to LMRA cases. Upon analysis of the applicable

provisions of ERISA, this Court concluded ERISA completely

preempted the employee’s claim for wrongful termination

and, therefore, Metropolitan Life could remove the case to

federal district court under its federal question jurisdic-

tion. 481 U.S. at 67. This Court’s finding of complete

preemption was based upon, among other things, the fact

that the jurisdictional subsection of the ERISA statute and

the legislative history surrounding enactment of ERISA

“set[ ] out [Congress’s] clear intention to make 502(a)(1)(B)

suits .. . federal questions for the purposes of federal court

jurisdiction in like manner as § 301 of the LMRA.” Id. at

66. This Court noted that “Congress ha[d] clearly mani-

fested an intent to make causes of action within the scope

of the civil enforcement provisions of §502(a) removable to

federal court.” Jd. This Court did not, however, hold that

explicit evidence of congressional intent to permit removal

was a prerequisite to a finding of complete preemption.

Indeed, this Court stated to the contrary: “In the absence

of explicit direction from Congress, this question would be

a close one.” Id. at 64.

To Block’s knowledge, this Court has not revisited the

complete preemption doctrine in the context of any federal

statute outside the LMRA and ERISA.

B. The Court of Appeals’ Decision Directly

Conflicts With Decisions of the United

States Court of Appeals for the Eighth Cir-

cuit.

In the present case, the majority panel of the Eleventh

Circuit Court of Appeals held that the National Bank Act

10

does not completely preempt state law usury claims

against national banks. This holding was based on the

majority's conclusion that there was insufficient evidence

of “clear congressional intent to permit removal” of state

law usury claims against national banks. Anderson, 287

F.3d at 1047 (Appendix at p. 17a). As noted above, this

holding is in direct conflict with the United States Court of

Appeals for the Eighth Circuit.

In M. Nahas & Co. v. First Nat'l Bank, 930 F.2d 608,

612 (8th Cir. 1991), the Eighth Circuit held that the

complete preemption doctrine applies to claims under

section 30 of the National Bank Act, 12 U.S.C. §§ 85-86.

Therefore, under Eighth Circuit precedent, any civil

complaint alleging excessive interest or usury by a na-

tional bank is “necessarily federal in nature and properly

removable.” Nahas at 612 (citation omitted). Moreover, in

the Eighth Circuit’s view, “‘a plaintiff cannot thwart the

removal of a case by inadvertently, mistakenly or fraudu-

lently concealing the federal question that would necessar-

ily have appeared if the complaint had been well

pleaded.’” Id. (quoting 1A Moore’s Federal Practice { 0.160

[3.-3], at p. 234 (1990 ed.)).

In finding that the National Bank Act completely

preempts state law usury claims against national banks,

the Eighth Circuit found significant this Court’s determi-

nation that in enacting the National Bank Act, “Congress

has prescribed in the national banking laws precisely what

remedies are available against a national bank for usury,

in order to promote remedial uniformity and to protect

national banks from destructive usury penalties fre-

quently available under state law.” Id. at 610 (citing

Farmers’ & Mechanics Nat'l Bank v. Dearing, 91 U.S. 29

(1875)). The Eighth Circuit cited a line of this Court’s

11

decisions holding that “‘since Congress has provided a

penalty for usury, that action preempts the field and

leaves no room for varying state penalties.’” Jd. (quoting

First Natl Bank v. Nowlin, 509 F.2d 872, 881 (8th Cir.

1975), and citing McCollum v. Hamilton Nat'l Bank, 303

U.S. 245 (1938) and Barnet v. National Bank, 98 U.S. 555

(1879).

Turning to the issue of removal jurisdiction, the

Eighth Circuit discussed this Court’s holding in Metropoli-

tan Life, which permitted removal of a purported state-law

claim in an area completely preempted by federal law. The

Eighth Circuit stated that under Metropolitan Life, the

complete preemption doctrine is “limited to federal stat- .

utes- that ‘so completely pre-empt a particular area, that

any civil complaint raising this select froup of claims is

necessarily federal.’” Nahas, 930 F.2d at 612 (quoting

Metropolitan Life, 481 U.S. at 65). Turning to this Court’s

decision in Avco, the Eighth Circuit noted that under this

Court’s precedents, “removal is most appropriate where

Congress has created an exclusive federal remedy that

displaces any overlapping or inconsistent state remedies.”

Id. The Eighth Circuit concluded:

That is precisely the situation here. Section 86 is

an exclusive federal remedy, created by Congress

over 100 years ago to prevent the application of

overly-punitive state law usury penalties against

national banks. . . . Thus, whether or not plaintiff

artfully attempted to couch its complaint wholly

in state law terms, it was necessarily federal in

nature and properly removable. i

Id. at 612. The Eighth Circuit recently confirmed its

holding in Nahas. See Krispin v. May Dept. Stores Co., 218

F.3d 919, 922 (8th Cir. 2000). —

12

C. Other Circuits Have Addressed Complete

Preemption by the National Bank Act in

Conflicting Decisions.

In addition to the Eighth Circuit, the Fifth Circuit

Court of Appeals has affirmed, in a per curiam decision,

the determination by a Louisiana district court that the

National Bank Act completely preempted state law exces-

sive interest claims against Block in a RAL case similar to

the case at hand. Battiste v. H&R Block, Inc., 209 F.3d 719

(5th Cir. 2000), aff’g No. 97-CV-749-A (M.D. La. Jan. 13,

1998) (see Appendix at pages 36a-43a). However, a divided

panel of the Court of Appeals for the Third Circuit decided

that the National Bank Act does not confer complete

preemption over state law usury claims against national

banks. See Spellman v. Meridian Bank, Nos. 94-3203, 94-

3204, 94-3215 to 94-3218, 1995 WL 764548 (3d Cir. Jan.

12, 1996), vacated and set for reh’g en banc, 1996 U.S. App.

LEXIS 2506 (3d Cir. Feb. 16, 1996). This decision was

vacated, and the Third Circuit ordered a rehearing en

banc. Before the full court could address the issue, how-

ever, the plaintiffs dismissed the case, leaving the issue

unresolved.

Decisions among the district courts are also divided.

While a number of district courts in other circuits have

adopted the Eighth Circuit’s view that the National Bank

Act completely preempts state law usury claims against

national banks, see Watson v. First Union Nat'l Bank, 837

F. Supp. 146, 149 (D.S.C. 1993) (collecting cases), other

courts have remanded cases removed by national banks,

finding that the National Bank Act does not confer com-

plete preemption. See, e.g., Copeland v. MBNA America,

820 F. Supp. 537, 541 (D. Colo. 1993).

OR OS Ee nt alia tapi, Stat

OV nd Mtl tle an es gin lala C8 SEL, LNA TETAS NE BED Line Reg Chin

aR Sarge

13

D. Resolution of the Conflict is Essential.

The decisions of the Eighth and Fifth Circuits, unlike

the Eleventh Circuit’s panel decision in this case, demon-

strate that Section 30 of the National Bank Act completely

preempts usury claims against national banks that are

purportedly based upon state law, thereby providing a

basis for removal jurisdiction from state court to federal

court. Resolution of this conflict is important. Without

consideration of this case by this Court, the conflicting law

on this issue will subject national banks to different

standards regarding removal depending upon the circuit

in which they are sued. This conflict will not be resolved

absent a decision of this Court.

Il. THE ELEVENTH CIRCUIT’S HOLDING THAT

THE NATIONAL BANK ACT DOES NOT COM-

PLETELY PREEMPT STATE LAW USURY

CLAIMS AGAINST NATIONAL BANKS IS

FLATLY INCONSISTENT WITH NUMEROUS

RULINGS OF THIS COURT, WHICH HAVE

HELD THAT USURY CLAIMS AGAINST

NATIONAL BANKS NECESSARILY ARISE

UNDER FEDERAL LAW.

A. This Court’s Precedents Establish That All

Causes of Action For Usury Against Na-

tional Banks Necessarily Arise Under Fed-

eral Law.

Under this Court’s precedents, it is evident that

Congress, in passing Section 30 of the National Bank Act

(12 U.S.C. §§ 85-86), intended for usury actions against

national banks to arise under federal law. This Court has

long recognized that Section 30 of the National Bank Act,

12 U.S.C. §§ 85-86, exclusively defines federal usury law and

14

supersedes (i.e., preempts) state usury laws, and provides

the exclusive remedy for any violation of such law. First, in

Dearing, decided shortly after the National Bank Act was

enacted, the Supreme Court recognized that the provisions

contained in Section 30 of the National Bank Act “form a

system of regulations ... [whose] parts are in harmony

with each other, and cover the entire subject.” 91 U.S. at 32

(emphasis added). This Court further noted that “[tJhe

power to supplement [section 30] by State legislation is

conferred neither expressly nor by implication.” Jd. at 35.

Three years later, in Barnet v. National Bank, 98 U.S.

555 (1878), this Court reiterated its view that Section 30 of

the National Bank Act provides an exclusive federal claim

and remedy for usury against national banks: “The [state]

statutes .. . upon the subject of usury . . . cannot affect the

case. Where a statute [the National Bank Act] creates a

new right or offence, and provides a specific remedy or

punishment, they alone apply. Such provisions are exclu-

sive.” Id. at 558 (emphasis added). See also Evans v.

National Bank, 251 U.S. 108, 109 (1919) (“[WJhether

transactions by [a national bank] are usurious and the

consequent penalties therefor must be ascertained upon a

consideration of the National Bank <Act.”) (emphasis

added).

Finally, in Marquette Nat’l Bank v. First of Omaha

Serv. Corp., 439 U.S. 299, 308 (1978), this Court held that

Section 85 of the National Bank Act established the

exclusive limitation on the interest rates chargeable by the

bank: “Omaha Bank is a national bank; it is an ‘instru-

mentalit[y] of the federal government, created for a public

purpose, and as such necessarily subject to the paramount

authority of the United States.’ ... The interest rate that

Omaha Bank may charge in its BankAmericard program is

15

thus governed by federal law.” Id. at 308 (emphasis added)

(quoting Davis v. Elmira Savings Bank, 161 U.S. 275, 283

(1896) and citing Dearing, 91 U.S. at 34). This Court noted

that a “[cJlose examination of the National Bank Act of

1864, its legislative history, and its historical context

makes clear that ... Congress intended to facilitate ... ‘a

national banking system.’” Jd. at 314-15. This Court

continued: “To the extent the enumerated federal rates of

interest are greater than permissible state rates, state

usury laws must, of course, give way to the federal statute.”

439 U.S. at 318, n.31 (emphasis added).

In applying Section 85, this Court held that, despite

the Bank’s conduct of a credit card operation and solicita-

tion of customers in Minnesota, it nevertheless was

“located” for purposes of Section 85 im Nebraska, at the

address specified in its charter. 439 U.S. at 309. Therefore,

this Court held, federal law empowered the bank to

“export” rates permitted under Nebraska law to its cus-

tomers in Minnesota, notwithstanding the usury limita-

tions of Minnesota law. This Court reaffirmed the

preemptive effect of Section 85, even while recognizing it

would “impair” the ability of states to establish uniform

maximum interest rates within its borders: “Petitioners’

final argument is that the ‘exportation’ of interest rates,

such as occurred in this case, will significantly impair the

ability of States to enact effective usury laws. This im-

pairment, however, has always been implicit in the struc-

ture of the National Bank Act.... ” 439 U.S. at 318. See

also Smiley v. Citibank, 517 U.S. 735, 744 (1996) (stating,

in dicta, that “there is no doubt that § 85 pre-empts state

law.”).

Thus, for over a century, this Court has consistently

recognized that Section 30 of the National Bank Act, 12

16

U.S.C. §§ 85-86, completely displaces state law usury

claims against national banks. Accordingly, under this

Court’s precedents, usury claims against national banks

necessarily arise under federal law, providing a basis to

remove such claims to federal court. Stated in modern

terms, the holdings of this Court make clear that the

National Bank Act “completely preempts” state law usury

claims against national banks.

B. The Modern Complete Preemption Cases of

this Court Compel the Conclusion that the

National Bank Act Completely Preempts

State Law Usury Claims Against National

Banks.

As discussed above, under the early National Bank

Act decisions that predate the modern label “complete

preemption,” this Court has repeatedly held that usury

claims against national banks necessarily arise under the

National Bank Act. But even if this Court had not previ-

ously resolved this basic question under its early decisions,

a plaintiff’s claim for usury and/or excessive interest against

a national bank would be completely preempted, and thus

removable, under the modern complete preemption cases

of this Court.

Under this Court’s decisions, the complete preemption

doctrine allows removal of a state court action even if the

plaintiff has couched its claims in state law terms where

“the preemptive force” of federal law “is so powerful as to

displace entirely any state cause of action.” Franchise Tax,

463 U.S. at 23. That is the case here: (1) the National

Bank Act preempts state law claims for usury against

national banks, and (2) the “preemptive force” of the Na-

tional Bank Act provides the exclusive remedy for usury

ar

claims against national banks, thereby “displac[ing]

entirely any state cause of action.” Jd.

“[T]here is no doubt that § 85 pre-empts state law.”

Smiley, 517 U.S. at 744. See also Marquette, 439 U.S. at

318, n.31 (“[S]tate usury laws must, of course, give way to

the federal statute.”). Thus, the first requirement for

complete preemption is satisfied in this case. This Covrt’s

second requirement for complete preemption — that the

“preemptive force” of federal law “displace entirely any

state cause of action” — is also met in this case. Section 86

of the National Bank Act provides that if a national bank

charges interest greater than that allowed by the laws of

its home state, the bank is subject to a penalty of forfei-

ture of that part of the interest which has yet to be paid,

as well as twice the amount of the interest which has

already been paid. 12 U.S.C. § 86. For well over a century,

this Court has held that Section 86 provides the “exclu-

sive” remedy in favor of borrowers for excessive loan ~

charges collected by a national bank. See, e.g., Dearing, 91

U.S. at 32 (recognizing that the provisions contained in

Section 30 of the National Bank Act “form a system of

regulations ... [whose] parts are in harmony with each

other, and cover the entire subject.”); Barnet, 98 U.S. at

558 (holding that “[t]he [state] statutes ... upon the

subject of usury . . . cannot affect the case. Where a statute

[the National Bank Act] creates a new right or offence, and

provides a specific remedy or punishment, they alone

apply. Such provisions are exclusive.”).

This Court’s decisions regarding the National Bank

Act set forth its understanding of Congress’s intent in

passing the National Bank Act. As this Court has held,

through the National Bank Act, “Congress intended to

facilitate ... a ‘national banking system.’” Marquette, 439

ae

18

U.S. at 314-315. Indeed, national banks are federal in-

strumentalities serving federal policy objectives and,

accordingly, are afforded special powers under the Na-

tional Bank Act. Id. at 308 (“Omaha Bank is a national

bank; it is an ‘instrumentalit[y] of the federal government,

created for a public purpose....’”) (quoting Davis, 161

U.S. at 283); Franklin Nat'l Bank v. New York, 347 U.S.

373, 375 (1954) (“The United States has set up a system of

national banks as federal instrumentalities to perform

various functions”). As this Court has noted, for over a

century, in matters of interest and usury, “‘National banks

... have been National favorites.’” Marquette, 434 U.S. at

314, quoting Tiffany v. National Bank, 85 U.S. 409, 413

(1873). -

Because the National Bank Act not only preempts

state law usury claims, but also provides the exclusive

remedy for claims of usury against national banks, the

statute’s “preemptive force” is powerful enough to “dis-

place entirely any state cause of action” for usury. Fran-

chise Tax, 463 U.S. at 23. Thus, under this Court’s

precedents, the National Bank Act completely preempts

state law usury claims against national banks, thereby

providing a basis for removal jurisdiction in this case.

C. The Majority’s Test for Complete Preemp-

tion, Which Requires a Showing of Ex-

plicit Congressional Intent to Permit

Removal, is Inappropriate.

In the present case, the majority panel for the Elev-

enth Circuit based its conclusion that the National Bank

Act does not completely preempt respondents’ state law

usury claims on an absence of legislative history confirm-

ing that the drafters of the National Bank Act intended for

19

cases alleging usurious interest to be removable to federal

court. 287 F.3d at 1047 (Appendix at p. 17a). However, as

discussed above, in neither Avco nor in this Court’s later

characterization of that decision in Franchise Tax did this

Court discuss Congress’s intent in passing the LMRA or

state that complete preemption is dependent upon explicit

evidence of congressional intent to permit removal. In-

stead, the Court found that complete preemption sup-

ported removal jurisdiction in Auvco because, in the Court’s

view, “the preemptive force of § 301 is so powerful as to

displace entirely any state cause of action” that comes

within the purview of the federal statute. Franchise Tax,

463 U.S. at 23. Similarly, in Metropolitan Life, while this

Court noted that absent an “explicit direction from Con-

gress, this question would be a close one,” 481 U.S. at 64,

this Court did not state that a specific congressional intent

to permit removal was a prerequisite to a finding of

complete preemption. It simply found that in that case,

there was such an explicit direction from Congress, includ-

ing an express statement by Congress in the legislative

history that the statute involved should be treated the

same as the statute at issue in the Auco case. Metropolitan

Life, 481 U.S. at 66.

The majority's requirement of an explicit showing of |

Congressional intent to authorize removal in the legisla-

tive history of the statute is not only not required by this

Court’s precedents, but it is also futile with a statute such

as the National Bank Act, given that the ‘statute was

written by Congress in 1864, long before the general

removal statute, the well-pleaded complaint rule or the

complete preemption doctrine were enunciated. We could

therefore not expect the Congress that enacted the National

Bank Act to have discussed federal question jurisdiction or

)

20

the removal implications of §§ 85 and 86, since neither

general federal question jurisdiction nor general removal

power existed in 1864. Under these circumstances, the

majority of the Eleventh Circuit’s requirement of an

explicit showing of congressional intent to permit removal

is inappropriate.

y

v

CONCLUSION

For the foregoing reasons, this Court should grant

Block’s petition for writ of certiorari.

PETER S. FRUIN

MAYNARD, COOPER & GALE,

PC.

201 Monroe Street

Suite 1940

Montgomery, Alabama

36104-3720

Respectfully submitted,

A. INGE SELDEN III

STEPHEN C. JACKSON

Counsel of Record

CARL S. BURKHALTER

JULIE L. WILSON

MAYNARD, COOPER & GALE,

PC.

2400 AmSouth/Harbert

Plaza

1901 Sixth Avenue North

_Birmingham, Alabama

35203-2618

Attorneys for Petitioner H&R Block, Inc.

la

287 F.3d 1038

United States Court of Appeals,

Eleventh Circuit.

Marie ANDERSON, Alvester Brafort, et al.,

Plaintiffs-Appellants,

V.

H&R BLOCK, INC., Beneficial National Bank, et al.,

Defendants-Appellees.

No. 01-11863.

April 3, 2002.

K. Stephen Jackson, Jeff S. Daniel, Jackson, Fraley &

Shuttlesworth, P.C., Birmingham, AL, for Plaintiffs-

Appellants. ,

Peter Sean Fruin, Maynard, Cooper & Gale, PC.,

Montgomery, AL, Stewart M. Cox, Bradley, Arant, Rose &

White, A. Inge Selden, III, Stephen Clark Jackson, May-

nard, Cooper & Gale, P.C., Birmingham, AL, Burt M.

Rublin, Ballard, Spahr, Andrews & Ingersoll, LLP, Phila-

delphia, PA, for Defendants-Appellees.

Appeal from the United States District Court for the

Middle District of Alabama.

Before TJOFLAT, BARKETT and WILSON, Circuit

Judges.

WILSON, Circuit Judge:

The issue we decide on this appeal is whether the

plaintiffs’ state-law usury claims are completely pre-

empted by the National Bank Act (NBA), 12 U.S.C. §§ 85

and 86, and therefore properly removable to federal court.

Although the plaintiffs alleged only state-law claims in

2a

their complaint, the district court determined that it had

jurisdiction based on the doctrine of complete preemption.

We disagree and reverse.

BACKGROUND

The plaintiffs, who as customers of H&R Block, Inc.

_ had taken out tax refund anticipation loans’ from Benefi-

‘cial National Bank, brought suit in state court against -

H&R Block, Beneficial National Bank, -and Beneficial Tax

Masters, Inc., alleging usury violations’ along with other

state-law claims. The defendants removed the case to

federal court on the basis of federal question jurisdiction.

The defendants argued that since the NBA provides the

exclusive remedy for claims alleging excessive interest

against national banks, the plaintiffs’ state-law usury

claims should be recharacterized as federal claims under

the doctrine of complete preemption. The plaintiffs moved

to remand the case back to state court, arguing that while

§§ 85 and 86 of the NBA may provide a defense to state-

law usury claims, these provisions do not accomplish

complete preemption. The district court denied the motion

to remand, holding that removal was proper because

' In a tax refund anticipation loan, a customer receives the amount

of her anticipated tax refund, less fees charged by the lender and the

tax preparation service, and in return authorizes the government to

deposit the tax refund directly into an account at the bank to repay the

loan.

* The plaintiffs alleged that the defendants charged excessive

interest in violation of Alabama Code § 8-8-1 and the common-law

usury doctrine. In addition to the usury claims, the complaint included

claims for intentional misrepresentation, suppression of material facts,

and breach of fiduciary duty.

3a

federal question jurisdiction existed based on complete

preemption. Recognizing that the issue was unsettled in

this Circuit, the district court certified for interlocutory

appeal the question of whether §§ 85 and 86 of the NBA

completely preempt state-law usury claims so as to confer

removal jurisdiction. We hold that these sections do not

accomplish complete preemption.

DISCUSSION

The question of whether §§ 85° and 86° of the NBA

completely preempt state-law usury claims against a

national bank has been the subject of disagreement among

other circuits and among district courts within this Cir-

cuit.’ What is at stake in this ihquiry is whether §§ 85 and

* Section 85 provides, “Any [national bank] may take, receive,

reserve, and charge on any loan or discount made ... interest at the

rate allowed by the laws of the State . .. where the bank is located... .”

12 U.S.C. § 85.

* Section 86 provides,

The taking, receiving, reserving, or charging a rate of inter-

est greater than is allowed by section 85 of this title, when

knowingly done, shall be deemed a forfeiture of the entire

interest which the note, bill, or other evidence of debt car-

ries with it, or which has been agreed to be paid thereon. In

case the greater rate of interest has been paid, the person

by whom it has been paid, or his legal representatives, may

recover back, in an action in the nature of an action of debt,

twice the amount of the interest thus paid from the associa-

tion taking or receiving the same: Provided, That such ac-

tion is commenced within two years from the time the

usurious transaction occurred.

12 U.S.C. § 86.

* While the Eighth Circuit has held that § 86 completely preempts

state-law usury claims, M. Nahas & Co. v. First Nat'l Bank of Hot

(Continued on following page)

4a

86 not only provide a defense to state-law usury claims

under ordinary preemption, but also confer on defendants

the ability to remove the case from state to federal court

under the complete preemption doctrine. For the reasons

that follow, we hold that §§ 85 and 86 do not accomplish

complete preemption. We begin by describing the complete

preemption doctrine and analyzing how the doctrine has

been applied by the Supreme Court and this Court. Our

analysis reveals that the complete preemption inquiry

turns on congressional intent — whether Congress not only

intended for a federal statute to provide a defense to state-

law claims, but also intended to confer on defendants the

ability to remove a case to a federal forum. We conclude

that §§ 85 and 86 of the NBA do not accomplish the ex-

traordinary result of complete preemption, because clear

congressional intent to permit removal under these sec-

tions is lacking.

Springs, 930 F.2d 608, 612 (8th Cir.1991), the Third Circuit disagreed

in Spellman v. Meridian Bank, 3d Cir.1996, 1995 WL 764548 (Nos. 94-

3203, 94-3204, 94-3215 to 94-3218, Jan. 12, 1996), Rehearing in Banc

Granted, Opinion Vacated (Feb.:16, 1996). After the Third Circuit

vacated the panel decision and ordered a rehearing en banc, the parties

settled and the complete preemption issue was left undecided. 14B

Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal

Practice and Procedure § 3722.1, at 557 (3d ed.1998).

Within this Circuit, district courts also have reached different

results. Compare Monday v. Coast to Coast Wireless Cable, M.D.

Ala.1997, 1997 WL 114874 (Nos. CV-96-A-1321-N, CV-96-A-1539-N, CV-

96-A-1720-N, CV-96-A-1722-N, CV-96-A-1723-N, CV-96-A-1725-N, Feb.

19, 1997) (holding §§ 85 and 86 completely preempt state-law claims

within their scope), with Jones v. Bankboston, N.A., 115 F.Supp.2d

1350, 1356-58, 1360 (S.D.Ala.2000) (reaching the opposite conclusion).

5a

I

Whether a district court may exercise jurisdiction over

this case based on complete preemption is a question of

law that we review de novo. BLAB T:V. of Mobile, Inc. v.

Comcast Cable Communications, Inc., 182 F.3d 851, 854

(11th Cir.1999). As courts of limited jurisdiction, lower

federal courts may decide a case only when Article III of

the Constitution provides that the federal judicial power

extends to the case and when Congress has granted

jurisdiction. Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d

405, 409 (11th Cir.1999). When a federal court acts outside

its jurisdiction, it violates principles of separation of

powers and federalism, interfering with Congress’s author-

ity to demarcate the jurisdiction of lower federal courts,

and with the states’ authority to resolve disputes in their

own courts. Id. at 409-10. For this reason, when there are

doubts as to whether removal jurisdiction is proper, we

favor remand of removed cases. Id. at 411.

The removal statute, 28 U.S.C. § 1441(a), provides

that any civil action brought in state court may be re-

moved to federal court by the defendant as long as the

federal court has jurisdiction in the case. Removal based

on federal question jurisdiction, the grounds for removal

the district court found here, generally is governed by the

“well-pleaded complaint” rule, which provides that a case

may be removed only if the plaintiff’s properly pleaded

complaint reveals that the claim is based on federal law.

Franchise Tax Bd. of Cal. v. Constr. Laborers Vacation

Trust for S. Cal., 463 U.S. 1, 9-10, 103 S.Ct. 2841, 77

L.Ed.2d 420 (1983). Under the well-pleaded complaint

rule, a case in which the plaintiff asserts only state-law

claims may not be removed to federal court based on the

6a

existence of a federal defense — even the defense of ordi-

nary preemption. Caterpillar Inc. v. Williams, 482 U.S.

386, 393, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). “Congress

has long since decided that federal defenses do not provide

a basis for removal.” Jd. at 399, 107 S.Ct. 2425.

An exception to the well-pleaded complaint rule is the

“complete preemption” doctrine. BLAB T:V., 182 F.3d at

854. Under this doctrine, a defendant may remove a case

to federal court even though the plaintiff raises only state-

law claims in her complaint, when “the pre-emptive force

of a [federal] statute is so extraordinary that it converts an

ordinary state common-law complaint into one stating a

federal claim for purposes of the well-pleaded complaint

rule.”® Caterpillar Inc., 482 U.S. at 393, 107 S.Ct. 2425

(internal quotation marks omitted).

The Supreme Court has found complete preemption

under two federal statutes — section 301 of the Labor

Management Relations Act (LMRA), 29 U.S.C. § 185, and

section 502(a) of the Employee Retirement Income Secu-

rity Act (ERISA), 29 U.S.C. § 1132(a). BLAB T:V., 182 F.3d

at 855. The complete preemption doctrine was born with

little elaboration or explanation in Avco Corp. v. Aero

* We have recognized that the doctrine of complete preemption

often is confused with the defense of ordinary federal preemption.

BLAB T:V., 182 F.3d at 854-55. Ordinary preemption is a defense that

may be raised in state court as well as in federal court. Jd. at 855. As a

defense, ordinary preemption does not appear in the plaintiff’s well-

pleaded complaint, and thus does not give the defendant the ability to

remove a case to federal court. Caterpillar Inc., 482 U.S. at 393, 107

S.Ct. 2425. Unlike the defense of ordinary preemption, the doctrine of

complete preemption gives a defendant the ability to remove the case to

federal court. BLAB T:V., 182 F.3d at 854.

7a

Lodge Number 735, International Association of Machin-

ists and Aerospace Workers, 390 U.S. 557, 560-62, 88 S.Ct.

1235, 20 L.Ed.2d 126 (1968), where the Supreme Court

treated the plaintiff’s state-law claim based on a collective

bargaining agreement as a federal claim arising under

section 301 of the LMRA, and held that the case was

properly removed to federal court. The Supreme Court had

not yet begun to use the term “complete preemption” to

describe this result, and Avco provides little guidance on

the scope of the complete preemption doctrine.’

The Supreme Court provided more guidance on the

contours of the complete preemption doctrine when it

cautiously extended the doctrine to section 502(a) of

” Karen A. Jordan, in The Complete Preemption Dilemma: A Legal

Process Perspective, 31 Wake Forest L.Rev. 927, 951 (1996), remarked

that the Supreme Court in Avco “provided limited insight into the

justification for its holding,” since the Court “did not mention the well-

pleaded complaint rule, nor did it explain why this case fell outside that

rule.” The Court explained the Auco decision in Franchise Tax Board,

stating, “The necessary ground of decision was that the preemptive

force of § 301 is so powerful as to displace entirely any state cause of

action for violation of contracts between an employer and a labor

organization. Any such suit is purely a creature of federal law . . . .” 463

U.S. at 23, 103 S.Ct. 2841 (footnote omitted) (internal quotation marks

omitted).

Some courts describe as another example of complete preemption

the Supreme Court’s decision in Oneida Indian Nation of New York

State v. Oneida County, 414 U.S. 661, 667, 94 S.Ct. 772, 39 L.Ed.2d 73

(1974) (agreeing with the Oneida Indian Nation that federal question

jurisdiction existed over its right-to-possession claim because the

possessory rights of Indian tribes necessarily arise under federal law

and treaties). BLAB T'V., 182 F.3d at 855 n. 2. Gneida Indian Nation,

like Avco, does not use the term “complete preemption” and provides

little guidance on when a court should or should not apply the complete

preemption doctrine.

8a

ERISA in Metropolitan Life Insurance Co. v. Taylor, 481

U.S. 58, 64-67, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). The

Court said that without clear indications that Congress

intended to permit removal of state claims that fell within

the scope of ERISA’s civil enforcement provision in section

502(a), the Court would have been “reluctant” to expand

the “extraordinary pre-emptive power” recognized by the

Avco decision under section 301 of the LMRA. Id. at 65,

107 S.Ct. 1542. After examining section 502(a), however,

the Court did find clear indications of congressional intent

to permit removal — explicit statements in the legislative

history that Congress meant for this provision to be

construed in the same fashion as section 301 of the LMRA,

and close parallels between the jurisdictional subsection of

ERISA’s civil enforcement provision and section 301 of the

LMRA. Id. at 65-66, 107 S.Ct. 1542. Because Congress

“clearly manifested an intent to make [these] causes of

action ... removable to federal court,” the Supreme Court

felt bound to “honor that intent” and find complete pre-

emption. Jd. at 66, 107 S.Ct. 1542.

Outside the contexts of the LMRA and ERISA, this

Court has addressed the question of complete preemption

only twice, in Smith v. GTE Corp., 236 F.3d 1292, 1310-13

(11th Cir.2001) (holding that the Federal Communications

Act did not accomplish complete preemption), and BLAB

T.V., 182 F.3d at 857-59 (holding that the Cable Communi-

cations Policy Act did not accomplish complete preemp-

tion). In those cases, we recognized that the complete

preemption doctrine should be carefully limited in scope.

We noted that “although the Supreme Court recognizes

the existence of the complete preemption doctrine, the

Court does so hesitatingly and displays no enthusiasm to

extend the doctrine into areas of law beyond the LMRA

9a

and ERISA.” Jd. at 856. We recognized that the Supreme

Court only “reluctant[ly]” extended the complete preemp-

tion in Taylor, based on “virtually identical” jurisdictional

provisions in the LMRA and ERISA and explicit state-

ments in the legislative history of ERISA that the two

statutes should be construed in a like manner. Jd. at 855

(alteration in original) (internal quotation marks omitted).

Finding no similar clear manifestation of congressional

intent to permit removal in BLAB TV. or Smith, we held

that the complete preemption doctrine did not create

federal jurisdiction in those cases. Smith, 236 F.3d at

1313; BLAB T:V., 182 F.3d at 858.

In determining whether Congress intends for a federal

statute to completely preempt state-law claims, courts

consider a variety of factors such as “whether the state

claim is displaced by federal law under an ordinary pre-

emption analysis, whether the federal statute provides a

cause of action, what kind of jurisdictional language exists

in the federal statute, and what kind of language is

present in the legislative history to evince Congress’s

intentions.” BLAB T:V., 182 F.3d at 857. While we have

declined to adopt a specific test for this Circuit, we recog-

nize that all of these tests have the same ultimate goal:

“to determine whether Congress not only in-

tended a given federal statute to provide a fed-

eral defense to a state cause of action that could

be asserted either in a state or federal court, but

also intended to grant a defendant the ability to

remove the adjudication of the cause of action to

a federal court by transforming the state cause of

action into a federal [one].”

Id. (emphasis added) (alteration in original) (quoting

Arthur R. Miller, Artful Pleading: A Doctrine in Search of

)

10a

Definition, 76 Tex. L.Rev. 1781, 1797-98 (1998)). In sum,

both the Supreme Court and this Court have recognized

that the “touchstone” of the complete preemption inquiry

is congressional intent. Taylor, 481 U.S. at 66, 107 S.Ct.

1542; BLAB T:V., 182 F.3d at 857.

II

Since congressional intent is the pivotal issue in the

complete preemption inquiry, that is where we must focus

our analysis of whether §§ 85 and 86 of the NBA com-

pletely preempt state-law usury claims against a national

bank. In enacting the NBA, did Congress merely intend

for federal law to act as a defense to state-law usury

claims against a national bank under ordinary preemption

— a defense that just as well could be asserted in state

court and applied by state judges? Or did Congress intend

that national banks facing usury claims in state court

should have the ability to remove the case to a federal

forum?

The defendants argue that it would be impossible for a

court to find in the NBA the striking indications of con-

gressional intent to permit removal through complete

preemption that the Supreme Court relied on in Taylor,

because the NBA was enacted more than a decade before

Congress gave federal courts general federal question

jurisdiction, more than two decades before the develop-

ment of the well-pleaded complaint rule, and more than a

century before the articulation of the complete preemption

lla

doctrine.® Nonetheless, the defendants argue that applying

the complete preemption doctrine here would be consistent

with Congress’s purposes because the historical context of

the NBA indicates that Congress was suspicious of state

interference with national banks.

The NBA was enacted in 1864’ in the midst of eco-

nomic strife during the Civil War. The defendants cite to

many statements in the congressional debates surround-

ing the enactment of the NBA that show Congress's intent

to protect the new national banks from unfriendly state

legislation. For example, Representative Samuel Hooper of

Massachusetts argued that the NBA was necessary so “the

currency of the country may be within the control and

regulation of a national law applicable to the whole coun-

try, instead of being controlled and regulated by State law

as it has been heretofore,” and stated, “I appeal to the

* The Judiciary Act of 1875 gave lower federal courts general

federal question jurisdiction and general removal jurisdiction in civil

cases arising under the Constitution or federal law. Donald H. Zeigler,

Twins Separated at Birth: A Comparative History of the Civil and

Criminal Arising Under Jurisdiction of the Federal Courts and Some

Proposals for Change, 19 Vt. L.Rev. 673, 735-37 (1995). Between 1875

and 1887, when the Act was amended, “the well-pleaded complaint rule

was not applied in full force to cases removed from state court; the

defendant’s petition for removal could furnish the necessary guarantee

that the case necessarily presented a substantial question of federal

law.” Franchise Tax Bd., 463 U.S. at 10 n. 9, 103 S.Ct. 2841. However,

since 1887, “[flor better or for worse ... a defendant may not remove a

case to federal court unless the plaintiff’s complaint establishes that

the case ‘arises under’ federal law.” Jd. at 10, 103 S.Ct. 2841.

* Act of June 3, 1864, 13 Stat. 99 (repealing and superseding the

similar Act of Feb. 25, 1863). The Act originally was titled “An Act to

provide a national currency, secured by a pledge of United States bonds,

and to provide for the circulation and redemption thereof,” but its title

was changed in 1874 to “The National Bank Act.” 12 U.S.C. § 38.

A a a . — Se Ce a a -_ —o ~ a —

12a

members of the House, and I ask them if they can excuse

themselves to their constituents and to posterity if they

sacrifice the great interests that are now at stake to the

comparatively petty interest of local banking.” Cong.

Globe, 38th Cong., 1st Sess. 1451 (1864). Based on state-

ments like this from the congressional debates, the defen-

dants ask us to adopt the reasoning of Judge Anthony J.

Scirica in his dissent in Spellman v. Meridian Bank, 3d

Cir.1996, 1995 WL 764548 (Nos. 94-3203, 94-3204, 94-

3215 to 94-3218, Jan. 12, 1996) (Scirica, J., dissenting),

Rehearing in Banc Granted, Opinion Vacated (Feb. 16,

1996): that Congress clearly intended that the NBA alter

federal state relations and protect national banks from

state interference, and therefore the NBA completely

preempts state law because “‘Congress intended to have

usury claims against national banks governed by a body of

federal law which the federal courts would apply.’” 14B

Charles Alan Wright, Arthur R. Miller & Edward H.

Cooper, Federal Practice and Procedure § 3722.1, at 557

(3d ed.1998) (quoting Spellman, 1995 WL 764548, at *24

(Scirica, J., dissenting)).

While the congressional debates amply demonstrate

Congress’s desire to protect national banks from state

legislation, they do not demonstrate that Congress desired

to protect national banks from facing suit in state court.

Jones v. Bankboston, N.A., 115 F.Supp.2d 1350, 1360

(S.D.Ala.2000) (acknowledging that the NBA was meant to

protect against “unfriendly legislation by the States,” but

stating that “the evidence does not demonstrate ... that

Congress was so distrustful of the states’ judicial sys-

tems”). Even before 1875, when Congress gave lower

federal courts original federal question jurisdiction and

general removal jurisdiction, Congress had provided in a

13a

handful of specific acts that federal law would both pro-

vide a defense and allow for removal from state to federal

court.” When Congress enacted the NBA in 1864, it

provided that suit could be brought in federal or state

court, and it did not provide for removal.” Four years later,

in the Act of July 27, 1868, Congress allowed for corpora-

tions organized under federal law to remove a case from

state to federal court by filing a petition that they had a

defense arising under federal law — but by amendment,

Congress excepted national banks from this removal

power. 15 Stat. 226-27 (“And be it further enacted, That

any corporation, or any member thereof, orther [other]

than a banking corporation, organized under a law of the

For instance, in the Act of March 3, 1863, 12 Stat. 755 (amended

by the Act of May 11, 1866, 14 Stat. 46), Congress provided for a federal

defense and provided the right of removal of civil or criminal actions

arising out of acts committed under federal authority during the Civil

War. See Mayor & Aldermen of City of Nashville v. Cooper, 73 U.S. (6

Wall.) 247, 251, 18 L.Ed. 851 (1867); Michael G. Collins, The Unhappy

History of Federal Question Removal, 71 Iowa L.Rev. 717, 720-21

(1986). The pre-1875 removal statutes are collected in Felix Frank-

furter & James M. Landis, The Business of the Supreme Court: A Study

in the Federal Judicial System 61-62 n. 22 (1927), and discussed in

Stanley I. Kutler, Judicial Power and Reconstruction Politics 143-60,

168 (1968).

" Although the 1863 Act provided for suit in federal court and did

not mention state court, see Mercantile Natl Bank at Dallas v. Lang-

deau, 371 U.S. 555, 558-59, 83 S.Ct. 520, 9 L.Ed.2d 523 (1963), when

Congress replaced the 1863 Act in 1864, section 57 of the Act provided

for suit in either federal or state court: “ {S]uits, actions and proceed-

ings, against any association under this act, may be had in any circuit,

district, or territorial court of the United States held within the district

in which such association may be established; or in any state, county, or

municipal court in the county or city in which said association is

located, having jurisdiction in similar cases....’” Jd. at 568, 83 S.Ct.

520 (quoting 13 Stat. 116-17).

l4a

United States, and against which a suit at law or in equity

has been or may be commenced in any court other than a

circuit or district court of the United States, for any

liability or alleged liability of such corporation, or any

member thereof as such member, may have such suit

removed from the court in which it may be pending, to the

proper circuit or district court of the United States, upon”

filing a petition therefor, verified by oath, either before or

after issue joined, stating they have a defence arising

under or by virtue of the Constitution of the United States,

or any treaty or law of the United States... .” (alteration

in original)). See also Cong. Globe, 40th Cong., 2d Sess.

4197-98 (1868); 7 Charles Fairman, History of the Supreme

Court of the United States: Reconstruction and Reunion,

1864-88, Part Two, 394-97 (1987). This legislative history

compels us to reject the defendants’ suggestion that the

early history of national banks offers clear congressional

intent to make claims under the NBA removable.

Since both the Supreme Court and this Court have

recognized that congressional intent is the “touchstone” in

the complete preemption inquiry, we also must reject the

line of cases which have found complete preemption

without inquiring into Congress’s intent. The only circuit

court opinions that are consistent with this suggestion are

M. Nahas & Co. v. First National Bank of Hot Springs,

930 F.2d 608, 612 (8th Cir.1991), and Krispin v. May

Department Stores Co., 218 F.3d 919, 922 (8th Cir.2000),

which follows the M. Nahas & Co. reasoning. Without

examining congressional intent, the Eighth Circuit found

complete preemption in M. Nahas & Co. based solely on

15a

well-settled law that § 86 provides the exclusive remedy

for usury claims against a national bank.” 930 F.2d at 612.

However, in Jones, Chief District Judge Charles R. Butler,

Jr. criticized the Eighth Circuit’s lenient complete preemp-

tion standard as inconsistent with Supreme Court and

Eleventh Circuit precedent and held that the NBA did not

completely preempt state-law usury claims so as to allow

for removal. 115 FSupp.2d at 1361. We consider Jones to

be a sound application of the principles reflected in the

complete preemption cases decided by the Supreme Court

and this Court, and we take a similar approach here.

In Jones, the court concluded that the sole justifica-

tion the M. Nahas & Co. holding — that § 86 provides the

exclusive remedy for usury claims against a national bank

— was not by itself sufficient to establish complete preemp-

tion. Id. at 1355-56. The court in Jones arrived at this

conclusion by examining the Supreme Court’s analysis in

Taylor, where before beginning its complete preemption

inquiry, the Supreme Court acknowledged that ERISA

Federal law governs the amount of interest a national bank may

charge, Marquette Natl Bank of Minneapolis v. First of Omaha Serv.

Corp., 439 U.S. 299, 308, 99 S.Ct. 540, 58 L.Ed.2d 534 (1978), and

provides the exclusive remedy for usury claims against a national bank,

McCollum v. Hamilton Nat'l Bank of Chattanooga, 303 U.S. 245, 247,

58 S.Ct. 568, 82 L.Ed. 819 (1938); Evans v. Natl Bank of Savannah, 251

U.S. 108, 109, 40 S.Ct. 58, 64 L.Ed. 171 (1919); Farmers’ & Mechanics’

Natl Bank v. Dearing, 91 U.S. 29, 32, 23 L.Ed. 196 (1875). But this

does not provide an answer to the complete preemption inquiry -

“C]omplete preemption principally determines not whether state or

federal law governs a particular claim, but rather whether that claim

will, irrespective of how it is characterized by the complainant, [serve

as the basis for federal question jurisdiction].’” BLAB T.V., 182 F.3d at

855 (alteration in original) (quoting McClelland v. Gronwaldt, 155 F.3d

507, 517 (5th Cir.1998)).

16a

preempted the plaintiff’s state-law claims and provided an

alternative federal remedy. Jd. at 1356 (citing Taylor, 481

U.S. at 64, 107 S.Ct. 1542). “Were the existence of an

‘exclusive federal remedy’ the only requirement for com-

plete preemption, the ... Court would have concluded its

analysis at this point and declared the plaintiff’s claims

completely preempted.” Jd. However, the Taylor Court

went on to say that it would be “reluctant” to find complete

preemption on this basis alone. 481 U.S. at 65, 107 S.Ct.

1542. The Taylor Court then conducted a searching in-

quiry into congressional intent, focusing on the parallels to

the LMRA and explicit statements in the legislative

history that ERISA should be construed like the LMRA to

find Congress had “clearly manifested an intent to make

causes of action within the scope of the civil enforcement

provisions of § 502(a) removable to federal court.” Id. at

66, 107 S.Ct. 1542. The Jones court concluded — and we

agree — that the analysis in Taylor indicates that where

there are no further indications of congressional intent to

permit removal, the existence of an exclusive federal

remedy generally will not be enough to achieve complete

preemption. 115 FSupp.2d at 1356.

The Jones court also noted that this Court uses a

more demanding standard for complete preemption than

the Eighth Circuit used in M. Nahas & Co. Id. at 1355-56.

“(T]he only justification offered by the Nahas Court for its

ruling was that the National Bank Act accomplishes

‘ordinary preemption of state law claims for excessive

interest and provides an 2. .ernative federal cause of action

for the preempted state claim.” Jd. at 1355. We previously

have recognized that the mere provision of a federal cause

of action cannot be dispositive in the complete preemption

inquiry:

17a

If the creation of a federal cause of action served

as the sole litmus test for congressional intent,

complete preemption would apply to every fed-

eral statute that creates such a cause of action

and complete preemption would be common

rather than extraordinary .... Congress may

create a federal cause of action without also pro-

viding sufficient evidence of its intent that state

causes of action are to be considered as arising

under the federal statute and thus removable to

federal court.

BLAB T’V., 182 F.3d at 859 n. 3. Our precedent demands

clear congressional intent to permit removal. Like the

Supreme Court, we have not yet extended the complete

preemption doctrine beyond section 301 of the LMRA and

section 502(a) of ERISA. We cannot extend the complete

preemption doctrine here, where clear congressional intent

to permit removal is lacking.

CONCLUSION

Under our federal system, both state and federal

courts are entrusted to faithfully follow federal law. Pub.

Serv. Comm’n of Utah v. Wycoff Co., 344 U.S. 237, 247-48,

73 S.Ct. 236, 97 L.Ed. 291 (1952) (“State courts are bound

equally with the federal courts by the Federal Constitution

and laws.”). State courts in Alabama — the forum from

which the defendants sought removal — have a long history

of faithfully applying the NBA. E.g., Lowery v. First Nat'l

Bank of Oneonta, 239 Ala. 690, 196 So. 891, 892 (1940)

(“The penalties imposed upon a national bank for charging

a higher rate of interest than allowed by the law of the

state where located are fixed by the Federal Banking

Law.”); Florence R.R. & Improvement Co. v. Chase Natl

Bank, 106 Ala. 364, 17 So. 720, 721 (Ala.1895) (“[T]he

18a

penalty prescribed by the national banking statute for

usurious discounting paper by national banks is exclusive,

and those imposed by state statutes cannot be applied and

enforced.”); Helms v. First Ala. Bank of Gadsden, N.A., 386

So.2d 450, 452 (Ala.Civ.App.1980) (“[S]ince Congress has

provided the penalty for usury [with § 86], that action

preempts the field, leaving no room for varying state

penalties.”).

Because state courts, like federal courts, are compe-

tent in determining when state-law claims are preempted

by federal law, removal to a federal forum based on the

doctrine of complete preemption has been the exception,

not the rule. Recognizing that the complete preemption

doctrine works to trump the well-pleaded complaint rule

as well as the maxim that a plaintiff is the master of the

complaint and may avoid a federal forum by relying

exclusively on state law, the Supreme Court expanded the

doctrine only “hesitatingly” when there was a clear show-

ing of congressional intent to permit removal. BLAB T’V.,

182 F.3d at 856. Since we find no clear congressional

intent to permit removal under §§ 85 and 86 of the NBA,

we therefore hold that while these sections may provide a

defense to state-law usury claims, they do not accomplish

complete preemption so as to permit removal.

We therefore REVERSE the district court’s order

denying the plaintiffs’ motion to remand and REMAND to

the district court for further proceedings consistent with

this opinion.

TJOFLAT, Circuit Judge, dissenting:

The majority decides today that the provisions in the

National Bank Act (“NBA”) addressing usurious interest,

19a

12 U.S.C. §§ 85 and 86, do not completely preempt plain-

tiffs’ state law claims, and, as a result, the claims are not

removable to federal court. The majority bases this conclu-

sion on an absence of legislative history confirming that

the NBA’s drafters intended that cases of usurious interest

be heard and decided in a federal forum. I do not dispar-

age the majority's emphasis on congressional intent as the

touchstone of complete preemption analysis. Rather, I take

issue with the majority's narrow conception of congres-

sional intent as something only inferable from an enact-

ment’s legislative history, here the NBA’s. Sometimes

Congressional intent is determined by looking to statutes

already on the books.’ In this case, I suggest that the

Judiciary Act of 1789 (“Judiciary Act” or “Act”), ch. 20, § 9,

1 Stat. 76-77 (1789), is highly relevant.in determining

whether the drafters of the NBA intended that lawsuits

seeking relief from usurious interest rates, which is what

the plaintiffs seek here, be litigated in a federal forum.

The Judiciary Act, enacted by the first Congress,

established the federal judiciary. It created thirteen

1 «We do not start from the premise that [the statutory] language is

imprecise. Instead, we assume that in drafting this legislation, Con-

gress said what it meant.” United States v. LaBonte, 520 U.S. 751, 757,

117 S.Ct. 1673, 1677, 187 L.Ed.2d 1001 (1997). Likewise, our own

precedent directs us to “begin our construction of [a statutory provision]

where courts should always begin the process of legislative interpreta-

tion, and where they often should end it as well, which is with the

words of the statutory provision.” Harris v. Garner, 216 F.3d 970, 972

(11th Cir.2000) (en banc). Legislative history is an oft-used and

important tool in the task of statutory interpretation when ambiguities

exist in the language. Still, “[wJhen the import of words Congress has

used is clear ... we need not resort to legislative history, and we

certainly should not do so to undermine the plain meaning of the

statutory language.” Id. at 976.

20a

judicial districts, which became the organizational units of

the lower federal courts. The degree of precision in lan-

guage employed by the drafters of the Act indicates that

they had a strong understanding of jurisdictional princi-

ples and their role in case management and development

of the law. For some federal causes, they gave exclusive

jurisdiction to the federal courts; for others, they provided

that the district courts would have concurrent jurisdiction

with the state courts.’ Where the drafters saw the need for

uniformity of decision or avoidance of state interference,

they gave the district courts exclusive jurisdiction. “[S]uits

for penalties and forfeitures incurred, under the laws of

the United States” were put squarely in that category.

Judiciary Act of 1789, ch. 20, § 9(b), 1 Stat. 76-77 (1789).

We must assume that Congress was well aware of this

provision — in particular, the word “forfeiture” — when,

seventy-four years later, in the midst of the Civil War, it

enacted the NBA. Section 85, as reproduced by the major-

ity in note four, defines usurious interest by relying on

specific discount commercial paper rates or state rates.

Section 86 provides a cause of action for a debtor who was

wrongly charged, or who has already paid, such interest on

a loan. Although the majority duplicated section 86 in note

five, it is useful to do so again for purposes of focusing on

the specific language employed:

The taking, receiving, reserving, or charging a

rate of interest greater than is allowed by section

* For example, concurrent jurisdiction was provided with respect to

“all causes where an alien sues for a tort only in violation of the law of

nations or a treaty of the United States.” Judiciary Act, ch. 20, § 9(b), 1

Stat. 77 (1789).

2la

85 of this title, when knowingly done, shall be

deemed a forfeiture of the entire interest which

the note, bill, or other evidence of debt carries

with it, or which has been agreed to be paid

thereon. In case the greater rate of interest has

been paid, the person by whom it has been paid

... may recover back, in an action in the nature

of an action of debt, twice the amount of the inter-

est thus paid.

12 U.S.C. §86 (emphasis added). In sum, section 86

furnishes a victim of usurious interest two possible reme-

dies: (1) the victim can obtain a judgment declaring

forfeiture of the entire interest of the debt if usurious

interest is sought; or (2) if such interest has already been

paid, the victim may bring a suit to recover twice the

amount collected as a penalty to the lender.

In the case before us, the plaintiffs claim that Benefi-

cial National Bank, a national banking association,

charged them usurious interest rates on tax refund antici-

pation loans. Plaintiffs’ allegations are so unspecific that it

is difficult to say whether the plaintiffs are seeking the

forfeiture of the interest they are being charged or

whether they are seeking twice the amount of interest

they have paid or whether they are pursuing both reme-

dies. I say this because there are twenty-six plaintiffs and

the complaint does not tell us, with respect to any of the

plaintiffs, (1) when the loan was made, (2) the terms of the

loan, and (3) the status of the loan — that is, whether the

plaintiff had paid any interest, and if so, how much, prior

to filing suit. I assume that the plaintiffs’ loans have not

been paid in full. Therefore, to the extent they have paid

interest, they are seeking, in the words of section 86,

“twice the amount of the interest paid” and “forfeiture” of

the amount still due.

22a

The only way to avoid the operation of the Judiciary

Act’s mandate that “suits for penalties and forfeitures

incurred” be filed in federal court is to say that the NBA

amended that mandate by implication.’ In light of our

statement in Patel v. Quality Inn South, 846 F.2d 700, 704

(1lth Cir.1988), that “amendments by implication are

disfavored,” I suggest that this method of avoiding the

Judiciary Act’s mandate is unavailable, and that the Act’s

mandate should therefore dictate our decision.‘

* Although the majority does not mention the Judiciary Act “suits

for penalties and forfeitures” provision, and therefore does not discuss

whether the NBA amended that provision by implication, the majority

does say that the reference to state courts in the NBA’s “Venue of suits”

provision forecloses the argument that the federal courts have exclusive

jurisdiction of a claim of usury.

* That the majority has not considered the application of the

Judiciary Act in this case is not surprising. As far as I know, no court

faced with the jurisdiction issue we are deciding has considered the

relevance of the Judiciary Act provision I rely on here. See e.g., Spell-

man v. Meridian Bank, 1995 WL 764548 (Nos. 94-3203, 94-3402, 94-

3215 to 94-3218) (3d Cir.1996) (vacated on grant of rehearing en banc

then appeal dismissed by parties after settlement); M. Nahas. & Co. v.

First. Natl Bank, 930 F.2d 608 (8th Cir.1991); Jones v. Bankboston,

NA., 115 F.Supp.2d 1350 (S.D.Ala.2000).

- 23a

132 FSupp.2d 948

United States District Court,

M.D. Alabama,

Northern Division.

Marie ANDERSON, et al., Plaintiffs,

v.

H & RBLOCK, INC.; Beneficial National Bank; and

Beneficial Tax Masters, Inc., Defendants.

No. CIV.A.00-A-1457-N.

Dec. 14, 2000.

Walter B. Calton, John P. Hagood, Calton Rutland &

Hagood, LLC, Eufaula, K. Stephen Jackson, Jeffrey Ss.

Daniel, Jackson, Fraley & Shuttlesworth, PC, Birming-

ham, AL, for Marie Anderson, Alvester* Brafort, Walter

Brutley, Patricia Coleman, Talaya Cope, Audrey Darby,

Annie Davis, April Deloach, Diane Franklin, Lillie Frank-

lin, Willie Lewis, Caledonia Jackson, Shirley Jernigan,

Evelyn Nelson, Willie Lawrence, Mamie Mitchell, Betty

Person, Diane Peterson, Gwen Rogers, Williams [sic]

Screws, Ernestine Starks, Gerald Stokes, Albert Thomas,

Charles Thomas, Kenneth Williams, Earline Young,

plaintiffs.

Peter S. Fruin, Maynard, Cooper & Gale, PC.,

Montgomery, AL, A. Inge Selden, III, Stephen C. Jackson,

Carl Stanley Burkhalter, Maynard, Cooper & Gale, P.C.,

Birmingham, AL, forH & R Block, Inc.

Stewart M. Cox, Hope T. Stewart, Bradley, Arant,

Rose & White, LLP, Birmingham, AL, Alan S. Kaplinsky,

Burt M. Rublin, Edward D. Rogers, Ballard, Spahr, An-

drews & Ingersoll, Philadelphia, PA, Brian P. Strength,

Bradley Arant Rose & White, LLP, Montgomery, for

OOOO Eee

24a

Beneficial National Bank, Beneficial Tax Masters, Inc.,

defendants.

MEMORANDUM OPINION AND ORDER

ALBRITTON, Chief Judge.

I. INTRODUCTION

This cause is now before the court on a Motion to

Remand, filed by the Plaintiffs, Marie Anderson, Alvester

Brafort, Walter Brutley, Patricia Coleman, Talaya Cope,

Audrey Darby, Annie Davis, April DeLoach, Diane Frank-

lin, Lillie Franklin, Willie Lewis, Caledonia Jackson,

Shirley Jernigan, Evelyn Nelson, Willie Lawrence, Mamie

Mitchell, Betty Person, Diane Peterson, Gwen Rogers,

William Screws, Ernestine Starks, Gerald Stokes, Albert

Thomas, Charles Thomas, Kenneth Williams, and Earline

Young (“Plaintiffs”) on November 22, 2000.

The Plaintiffs originally filed a Complaint against H

& R Block, Inc.; Beneficial National Bank; and Beneficial

Tax Masters, Inc. in the Circuit Court of Barbour County,

Alabama. The Complaint alleges counts of intentional

misrepresentation (Court [sic].One); suppression of mate-

rial facts (Count Two); breach of fiduciary duty (Count

Three); usury violations (Count Four); and Alabama Code

Violations (Count Five).

H & R Block, Inc. (“H & R Block”), and Beneficial

National Bank and Beneficial Tax Masters (collectively

“Beneficial”) filed a Notice of Removal in this court on

October 24, 2000. Removal was based upon the presence of

a federal question through complete pre-emption under

the National Bank Act (“NBA”). The Plaintiffs state they

25a

have asserted only state law claims and contest that the

NBA completely pre-empts these claims.

For the reasons herein discussed, the Motion to

Remand is due to be DENIED.

II. FACTS

The Plaintiffs’ claims arise out of representations

made and interest and fees charged in connection with

loans made to them through H & R Block by Beneficial.

According to Beneficial, these loans were tax refund

anticipation loans which are loans made to a tax return

preparation service by a bank in the amount of the cus-

tomer’s anticipated tax refund, less the fees charged by the

lender and the tax preparation service. .

The Plaintiffs allege that the Defendants charged

each of them interest in excess of the legal limit on inter-

est rates allowed under Alabama law and the common law

doctrine of usury. The Plaintiffs also allege that the

Defendants misrepresented and failed -to disclose the

interest rate and the fees that would be charged, and

breached their fiduciary duties to the Plaintiffs.

III. REMAND STANDARD

Federal courts are courts of limited jurisdiction. See

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375,

114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994), Burns v.

Windsor Insurance Co., 31 F.3d 1092, 1095 (1994); Wymbs

v. Republican State Executive Committee, 719 F.2d 1072,

1076 (11th Cir.1983), cert. denied, 465 U.S. 1103, 104 S.Ct.

1600, 80 L.Ed.2d 131 (1984). As such, federal courts have

26a

\

the power only to hear cases that they have been author-

ized to hear by the Constitution or the Congress of the

United States. See Kokkonen, 114 S.Ct. at 1675. Because

federal court jurisdiction is limited, the Eleventh Circuit

favors remand of removed cases where federal jurisdiction

is not absolutely clear. See Burns, 31 F.3d at 1095.

IV. DISCUSSION

Removal of a case to federal district court by a defen-

dant is only proper if the case brought by the plaintiff in

state court originally could have been brought in federal

court. See 28 U.S.C. § 1441(a). In this case, Beneficial and

H & R Block argue that the court has jurisdiction over the

Plaintiffs’ claims because of the presence of a federal

question. Federal question jurisdiction requires that the

action arise under the Constitution, laws, or treaties of the

United States. 28 U.S.C. § 1331. In deciding whether a

federal question exists, the court must apply the well-

pleaded complaint rule whereby the court looks to the face

of the complaint, rather than to any defenses asserted by

the defendant. See Caterpillar, Inc. v. Williams, 482 U.S.

386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987). Conse-

quently, the general rule is that a case may not be re-

moved to federal court on the basis of a federal defense,

including the defense of pre-emption. See Caterpillar, 482

U.S. at 393, 107 S.Ct. 2425. In this case, the Plaintiffs

have only asserted state law claims so that, on the face of

the Complaint, there is no federal question jurisdiction.

There is, however, an exception, or corollary, to the

well-pleaded complaint rule and it is this exception to

which Beneficial and H & R Block point in claiming that

this court has federal question jurisdiction. This exception

27a

is known as the “complete pre-emption” doctrine. This

exception is recognized in the rare instance Congress so

“completely pre-empts a particular area that any civil

complaint ... is necessarily federal in character.” Metro-

politan Life Ins. Co. v. Taylor, 481 U.S. 58, 64, 107 S.Ct.

1542, 95 L.Ed.2d 55 (1987). The situations in which the

complete pre-emption exception applies are so rare that

the Supreme Court has found complete pre-emption in

only a few areas. See Avco Corp. v. Aero Lodge No. 7385,

390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968) (§ 301

of the LMRA completely pre-empted a state cause of action

for violation of contracts); Metropolitan Life, 481 U.S. 58,

107 S.Ct. 1542, 95 L.Ed.2d 55 (§§ 502(a)(1)(B) and 502(f) of

ERISA completely pre-empted state contract. and tort

claims); Oneida Indian Nation v. County of Oneida, 414

U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974) (federal law

pre-emption with regard to tribal lands).

Beneficial and H & R Block have argued for the

application of the complete pre-emption doctrine in the

instant case based on §§ 85 and 86 of the National Bank-

ing Act (“NBA”). The NBA states in part, that a national

bank “may ... charge on any loan ... interest at the rate

allowed by the laws of the State ... where the bank is

located. ...” 12 U.S.C. § 85. The NBA further provides for

a civil enforcement mechanism. See 12 U.S.C. § 86.

Beneficial and H & R Block cite several cases, includ-

ing a previous decision of this court, holding that §§ 85-

and 86 of the NBA completely pre-empt state-law claims

challenging interest charged by a national bank, and thus

that such claims are removable from state to federal court.

See e.g., M. Nahas & Co. Inc. v. First Nat'l Bank of Hot

Springs, 930 F.2d 608 (8th Cir.1991); Monday v. Coast to

Coast Wireless Cable, 1997 WL 114874 (M.D.Ala. Feb.19,

28a

1997); Hunter v. Rich’s Dept. Stores, 945 F.Supp. 1500

(N.D.Ala.1995) (Propst, J.). There is, however, contrary

case law on the issue of whether the NBA completely pre-

empts state law claims challenging excessive interest. See

e.g., Jones v. Bankboston, N.A., 115 F.Supp.2d 1350

(S.D.Ala.2000).

The Eleventh Circuit recently addressed for the first

time the issue of complete pre-emption outside of the

Labor Management Relations Act (“LMRA”) and the

Employees Retirement Insurance Security Act (“ERISA”)

context. See BLAB T.V. of Mobile, Inc. v. Comcast Cable

Communications, Inc., 182 F.8d 851, 855 (11th Cir.1999)

(finding no complete pre-emption under the Cable Com-

munications Policy Act of 1984). In BLAB T:V., the Elev-

enth Circuit examined the different tests employed by

various circuits in assessing complete pre-emption argu-

ments. Id. at 856. While the court declined to adopt any of

the tests to be applied to all future claims of complete pre-

emption, the court did note that, while it relied heavily on

a particular decision of the Tenth Circuit, it did not adopt

the view of the Tenth Circuit that a statute’s providing a

federal cause of action is dispositive on the issue of con-

gressional intent. Id. at 859, n. 3. The Eleventh Circuit

held that a state law claim was not completely preempted

by the Cable Communications Policy Act of 1984 because

the court found that the requisite congressional intent to

convert state law claims into federal claims was absent.

Id. at 859.

This court has been presented with complete pre-

emption arguments under the NBA on two previous

occasions, both of which were decided before the BLAB

TV. decision by the Eleventh Circuit. See Monday v. Coast

to Coast Wireless Cable, 1997 WL 114874 at *1 (M.D.Ala.,

29a

Feb. 19, 1997); Mason v. Fidelity Federal Bank, 40

F.Supp.2d 1340 (M.D.Ala.1999).

In Monday, this court, relying on complete pre-

emption analysis in other cases, looked at three factors:

Congressional intent, whether the NBA displaced state

law claims with a federal cause of action, and whether the

jurisdictional language of the civil enforcement provisions

paralleled the LMRA and ERISA. Monday, 1997 WL

114874 at *6-7. Noting that the NBA pre-dated the exis-

tence of federal question jurisdiction, the well-pleaded

complaint rule, and the complete pre-emption doctrine,

this court relied on discussions of Congressional intent in

binding case law. Jd. at *6. This court relied on statements

in Supreme Court and former Fifth Circuit cases that the

NBA was intended to give advantages te national banks

over state competitors, and that an action stating a claim

of usury against a national bank is a new right which is

regulated by federal law, in concluding that Congress

intended for national banks to be governed by national

standards, not state law. Id. (citing Roper v. Consurve, 578

F.2d 1106 (5th Cir.1978), aff’d sub nom. on other grounds,

Deposit Guaranty Nat'l Bank v. Roper, 445 U.S. 326, 100

S.Ct. 1166, 63 L.Ed.2d 427 (1980); Marquette Nat. Bank of

Minneapolis v. First Omaha Service Corp., 439 U.S. 299,

99 S.Ct. 540, 58 L.Ed.2d 534 (1978); Farmers’ and Mechan-

ics’ National Bank v. Dearing, 91 U.S. 29, 35, 1 Otto 29, 23

L.Ed. 196 (1875)). This court further concluded that the

jurisdictional language of the NBA was similar enough to

the language used in the LMRA and ERISA, statutes

which the Supreme Court has found completely pre-empt

state law, to indicate that Congress intended for the

federal remedy provided in the NBA to be the remedy

which was available against national banks, whether the

30a

forum be federal or state, there being no mechanism for

removal to federal court at the time. Jd. at *7.

Although this court did not have the analysis in BLAB

T-V. before it when Monday was decided, the court finds

that the BLAB T:V. decision does not alter its conclusion in

Monday that §§ 85, 86 completely preempt state law

claims claiming usurious interest. The Eleventh Circuit

merely underscored the importance of Congressional

intent in BLAB T:V.,, and as noted above, this court’s

analysis in Monday was premised in large part on Con-

gressional intent. While the NBA, because it pre-dated the

relevant jurisdictional statutes and doctrines, may not

neatly fit into the complete pre-emption analysis of mod-

ern statutes, this court finds that there is sufficient

evidence in decisional law and the language of the NBA

from which to conclude that Congress intended for na-

tional banks to be held to national standards, and not to

be held liable under state law on claims alleging usury.

Therefore, finding no reason to depart from its earlier

analysis, the court again concludes that usurious interest

claims are completely pre-empted under the NBA.

In the two cases in which this court was previously

presented with an argument of complete pre-emption

under the NBA, the court determined that there was no

federal jurisdiction because the plaintiffs had not alleged

claims of usurious interest, which is the type of claim that

is completely preempted under the NBA. See Monday,

1997 WL 114874 at *10; Mason, 40 F.Supp.2d at 1345. In

this case, the Plaintiffs have pleaded a claim for usurious

interest. See Complaint, Count Four; Brief in Support of

Motion to Remand, page 8. Accordingly, the Plaintiffs have

brought a claim which is completely preempted by the

NBA, creating federal question jurisdiction in this court.

3la

The court recognizes that, while it has found evidence

of Congressional intent to completely pre-empt state law

usurious interest claims under the NBA, there is signifi-

cant disagreement among courts over the presence of

Congressional intent to completely pre-empt state law

claims under the NBA. See Jones, 115 F.Supp.2d at 1357.

The court further notes that the BLAB T’V. decision came

before the Eleventh Circuit as a question certified for

interlocutory appeal by the district court. BLAB T:V., 182

F.3d at 854. This court is willing to certify the issue of

complete pre-emption in this case for interlocutory appeal,

if any of the parties indicate their desire for the court to do

so by filing a written request by December 29, 2000.

V.CONCLUSION .

For the reasons discussed above, this court has federal

jurisdiction by virtue of the presence of a federal question

in this case. Accordingly, the Motion to Remand (Doc. # 7)

is due to be and is ORDERED DENIED.

ORDER

For good cause shown, it is hereby ORDERED that

the Memorandum Opinion and Order of this court entered

on December 14, 2000 is AMENDED to add the following

paragraph:

This order involves the issue of whether the

court has jurisdiction to proceed with this case.

Therefore, pursuant to 28 U.S.C. § 1292(b), the

court certifies that it is of the opinion that the

order involves a controlling question of law as to

which there is substantial ground for difference

of opinion and that an immediate appeal from

32a

the order may materially advance the ultimate

termination of the litigation. It is, therefore,

FURTHER ORDERED that if the Plaintiffs

make application for an appeal within ten (10)

days after the entry of this order, pursuant to 28

U.S.C. § 1292(b), these proceedings are STAYED

pending a determination of the application by the

Court of Appeals and, if the appeal is permitted,

final determination of the appeal by the Court of

Appeals.

The Clerk is DIRECTED to serve copies of this Order

by facsimile.

“7 a ace oe a ee Pee Se eT ees

33a

37 Fed.Appx. 981

(The decision of the Court is referenced in an eleventh

Circuit Table of Denials of Rehearing En Banc appearing

in the Federal Reporter. )

United States Court of Appeals,

Eleventh Circuit.

Marie Anderson, Alvester Brafort

v.

H&R Block, Inc., Beneficial National Bank

NO. 01-11863

May 29, 2002

M.D.Ala., 287 F.3d 1038

DENIALS OF REHEARING EN BANC

34a

12 U.S.C. § 85. Rate of interest on loans, discounts and

purchases :

Any association may take, receive, reserve, and charge

on any loan or discount made, or upon any notes, bills, of

exchange, or other evidences of debt, interest at the rate

allowed by the laws of the State, Territory, or District

where the bank is located, or at a rate of 1 per centum in

excess of the discount rate on ninety-day commercial

paper in effect at the Federal reserve bank in the Federal

reserve district where the bank is located, whichever may

be the greater, and no more, except that where by the laws

of any State a different rate is limited for banks organized

under state laws, the rate so limited shall be allowed for

associations organized or existing in any such State under

this chapter. When no rate is fixed by the laws of the

State, or Territory, or District, the bank may take, receive,

reserve, or charge a rate not exceeding 7 per centum, or 1

per centum in excess of the discount rate on ninety-day

commercial paper in effect at the Federal reserve bank in

the Federal reserve district where the bank is located,

whichever may be the greater, and such interest may be

taken in advance, reckoning the days for which the note,

bill, or other evidence of debt has to run. The maximum

amount of interest or discount to be charged at a branch of

an association located outside of the States of the United

States and the District of Columbia shall be at the rate

allowed by the laws of the country, territory, dependency,

province, dominion, insular possession, or other political

subdivision where the branch is located. And the purchase,

discount, or sale of a bona fide bill of exchange, payable at

another place than the place of such purchase, discount, or

sale, at not more than the current rate of exchange for

35a

sight drafts in addition to the interest, shall not be consid-

ered as taking or receiving a greater rate of interest.

12 U.S.C. §86. Usurious interest; penalty for taking;

limitations

The taking, receiving, reserving, or charging a rate of

interest greater than is allowed by section 85 of this title,

when knowingly done, shall be deemed a forfeiture of the

entire interest which the note, bill, or other evidence of

debt carries with it, or which has been agreed to be paid

thereon. In case the greater rate of interest has been paid,

the person by whom it has been paid, or his legal repre-

sentatives, may recover back, in an action in the nature of

an action of debt, twice the amount of the interest thus

paid from the association taking or receiving the same:

Provided, That such action is commenced within two years

from the time the usurious transaction occurred.

36a

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

DOUGLAS GALLAGHER, CIVIL ACTION NO.

FERMIN TULLIER, 97-749-A

PATRICK JUGE, BONNIE

GILBERT, HARRY

BATISTE, JR. and

JULIE DAVENPORT

Vv.

H&R BLOCK EASTERN

TAX SERVICES, INC.,

ET AL

RULING ON MOTION TO REMAND

(Filed Jan. 13, 1998)

This matter is before the court on a motion to remand

by plaintiffs, Douglas Gallagher, Fermin Tullier, Patrick

Juge, Bonnie Gilbert, Harry Batiste, Jr., and Julie Daven-

port. Defendants, Eastern Tax Services, Inc., H&R Block,

Inc., Block Financial Corporation, Danette Daigle,

Paulette Landry, Lois Falcon, and Defendants A through Z

(collectively “Block”), oppose the motion. Removal jurisdic-

tion is allegedly based on federal question subject matter

jurisdiction, 28 U.S.C. §1331.

Background

According to the memoranda and documents submit-

ted by the parties in support thereof, on July 8, 1997,

plaintiffs filed a class action petition in the 18th Judicial

District Court, Parish of Iberville, State of Louisiana,

seeking to recover monetary compensation for damages

37a

and for attorney fees, for alleged financial harm by Block

in scheme to systematically target and deceive lower

income, unsophisticated taxpayers out of “exorbitant”

interest and fees. Plaintiffs allege that Block induced

plaintiffs and other Louisiana residents to 1) pay a fee to

_ Block to secure their tax refunds supposedly more quickly

than available elsewhere; and 2) pay outrageous finance

charges for short term, fully secured loans from Block's

lending banks.

The petition alleges that defendants are liable on the

following counts: 1) fraudulent misrepresentation; 2)

fraudulent concealment; 3) dual agency; and 4) breach of

fiduciary duty.

On July 25, 1997, defendants filed a notice of removal.

Plaintiffs filed a motion to remand on August 15,

1997, on the grounds that 1) the claims by plaintiffs do not

arise under federal law; and 2) if applicable, preemption

would only be a defense to state law claims, and would not

be grounds for removal. Plaintiffs also request that the

court assess attorney’s fees against Block.

Defendants oppose the motion on the grounds that 1)

there are substantial, disputed questions of federal law in

this case which are central to the claims by plaintiffs for

recovery; and 2) plaintiffs have artfully pleaded in state

law terms a completely preempted federal cause of action.

Arguments

Plaintiffs argue that the state court petition alleges no

federal claims, only violations of Louisiana law, prohibit-

ing fraud, suppression, breach of fiduciary duty and dual

agency. Plaintiffs argue that the court should not accept

ane e naan

38a

Block’s distortion of the state law claims into a claim

under the National Bank Act, 12 U.S.C. 21 et seg., because

plaintiffs do not sue Block under the Act, nor could they,

because the Act regulates only the business of banking,

and Block is not a bank. Plaintiffs argue that Louisiana’s

interest in prohibiting Block from deceiving Louisiana

residents into exorbitant interest obligations does not

impact the purpose of the Act or any other federal law.

Plaintiffs also argue that Block’s supposed preemption

defense cannot create federal jurisdiction, because the

National Bank Act does not apply for preemption purposes

when no claims against a bank have been asserted.

Defendants argue that the issue of the agency or

broker status of defendants in relation to national banks is

tantamount to their status as alleged “branch offices”

“branch agencies”, or “additional offices” of national banks

conducting banking businesses, which is a matter of

federal law; thus, defendants argue, the success of the

allegations depends on a determination of whether one or

more of the Block defendants were “agents” or “brokers” of

these national banks in allowing the transactions to occur.

Defendants argue that plaintiffs all but name the national

banks as parties by alleging that the Block defendants

concealed the fact that they were actually creditors on the

loans.

Defendants also argue that, under the complete

preemption component of the “artful pleading” doctrine,

plaintiffs rest their case against defendants on the decep-

tive collection of excessive interest from plaintiffs pursu-

ant to loans actually made by one or more national banks,

in violation of the interest rates authorized by the Na-

tional Bank Act. Defendants argue that, if plaintiffs are

39a

willing to argue that Block is the legal surrogate of na-

tional bank lenders in the lending program, it follows that

the preemptive effect of the laws that govern the national

banks be applied to all aspects of the litigation, from the

standpoint of liability, remedy and jurisdiction.

Law and Discussion

To support removal, defendant bears the burden of

establishing federal jurisdiction over the state court suit.’

Removal under section 1441(b), the basis of removal here,

is appropriate only for those claims within the federal

question jurisdiction of the district courts, that is, for those

actions “arising under the Constitution, laws, or treaties of

the United States.” *

A case “arises under” federal law when a “right or

immunity created by the Constitution or laws of the

United States [is] an element, and an essential one, of

plaintiff’s cause of action.’ If, however, the state law

creates the cause of action, the court must determine

whether plaintiff’s demand “necessarily depends on

resolution of a substantial question of federal law.”

Generally, a suit may not be removed from state court

to federal court on the basis of a federal defense including

the defense of preemption; however, under the “complete

‘ Carpenter v. Wichata Falls Independent School District, 44 F.3d

362, 365 (5th Cir. 1995).

* 28 U.S.C. §1331.

* Franchise Tax Bd. v. Const. Laborers Vacation Trust, 463 U.S. 1,

103 S.Ct. 2841, 77 L.Ed.2d 420 (1983).

* Id.

40a

preemption doctrine”, once an area of state law has been

completely preempted, any claim based on that preempted

state law is considered a federal claim and therefore arises

under federal law.’

When plaintiff challenges the propriety of defendant’s

removal, defendant carries the burden of showing the

necessary facts to support the court’s exercise of removal

jurisdiction.° Any doubts about the propriety of removal

are construed in favor of remand.’ The removal statute

should be strictly construed against removal and all doubt

should be resolved in favor of remand.”

The National Bank Act, 12 U.S.C. §21 et seqg., governs

the operations of national banking associations.” The

background begins in 1863 and 1864, when the Civil War

Congress enacted and then reenacted the National Bank Act,

which launched the modern national banking system by

providing for federal chartering of private commercial banks

and empowering the newly created national banks to issue

and accept a uniform national currency.” Authorizing

* Caterpillar Inc. v. Williams, 482 U.S. 386, 107 S.Ct. 2425, 96

L.Ed.2d 318 (1987).

* See Jernigan v. Ashland Oil, Inc., 989 F.2d 812, 815 (5th Cir.

1993); Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1988);

McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 56 S.Ct.

780, 785, 80 L.Ed. 1135 (1936).

” Butler v. Polk, 592 F.2d 1293, 1296 (5th Cir. 1979).

* Shamrock Oil and Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct.

868, 85 L.Ed. 1214 (1941).

* Jackson v. First Nat. Bank of Valdosta, 349 F.2d 71 (5th Cir.

1965).

” U.S. Nat. Bank of Oregon v. Independent Ins. Agents of America,

Inc., 508 U.S. 439, 113 S.Ct. 2173, 124 L.Ed.2d 402 (1993), citing Act of

(Continued on following page)

-_

4la

national banks to “carry on the business of banking,” the

National Bank Act provides that such banks shall have

power —

“*To exercise ... all such incidental powers as

: shall be necessary to carry on the business of

: banking; by discounting and negotiating promis-

: sory notes, drafts, bills of exchange, and other

evidences of debt; by receiving deposits; by buy-

ing and selling exchange, coin, and bullion; by

loaning money on personal security; and by ob-

taining, issuing, and circulating notes.... The

business of dealing in securities and stock by the

: [bank] shall be limited to purchasing and selling

such securities and stock without recourse, solely -

upon the order, and for the account of, customers,

and in no case for its own account, and the

[bank] shall not underwrite any issue of securi-

ties or stock....’ 12 U.S.C. §24 Seventh (1988

ed. and Supp. V).””

The National Bank Act, 12 U.S.C. §85, permits a

national bank to charge “interest at the rate allowed by

the laws of the State .. . where the bank is located .. . and

no more.” Further, 12 U.S.C. §86 provides the penalty for

usury against a national bank that “tak[es], receiv[es],

reservies], or chargles] a rate of interest greater than is

allowed by Section 85.” Suits under sections 85 and 86 of

aR UL UL SB Sab Aer

Feb. 25, 1863, ch. 58, 12 Stat. 665; Act of June 3, 1864, ch. 106, 13 Stat.

99; E. Symons, Jr., & J. White, Banking Law 22-25 (3d ed. 1991); and

12 U.S.C. §38.

" NationsBank of North Carolina, N.A. v. Variable Annuity Life

Ins. Co., 513 U.S. 251, 115 S.Ct. 810, 130 L.Ed.2d 740 (1995).

* 12 U.S.C. §§85-86.

42a

the National Bank Act, and the predecessors of those

sections, are federal question cases.”

Plaintiffs allege that the “Rapid Refund” program is a

loan program administered by defendants in association

with banking institutions. Plaintiffs allege that defendants

solicited from their clients, on behalf of various banks,

loans which were collateralized with the expected refund.

Under the arrangement with the banks which issue the

loans, plaintiffs allege, defendants received a kickback

from the banks for each refund anticipation loan entered

into by its clients. Plaintiffs allege that the true nature of

the relationship between defendants and the lender was

that of broker or agent for the lender. It is clear that

plaintiffs have attempted to gain the liability and class

action benefits of identifying defendants with the banks

but none of the jurisdictional consequences of the allega-

tions.

The state court petition clearly alleges that the loans

were made by the national banks through their agent,

H & R Block. The state court petition clearly attacks the

validity of the loans made by the national banks. These

allegations are sufficient to implicate the provisions of

sections 85 and 86 of the National Bank Act, even though

the banks themselves are not now joined as parties to the

action.

Although the National Bank Act regulates only the

business of banking and named defendants are not banking

associations, defendants have provided persuasive support

* Fourchon, Inc. v. Louisiana National Leasing Corp, 723 F.2d 376

(5th Cir. 1984).

oh

i

43a

for their claim which would place this matter under the

National Bank Act. Plaintiffs may not escape federal

jurisdiction by artfully omitting parties to the transactions

that are the subject of this lawsuit.

Accordingly, for the reasons assigned, the motion by

plaintiffs to remand is hereby DENIED.

/s/ John V. Parker

JOHN V. PARKER, CHIEF JUDGE

MIDDLE DISTRICT OF LOUISIANA

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.

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