Robertson v. Ball, 76-1476

• Decision Date: 23 June 1976
• Docket Number: No. 76-1476,76-1476
• Parties: Janet K. ROBERTSON, and husband, Mark Robertson, Plaintiffs-Appellants, v. Jack J. BALL, and wife, Viola Ball, Defendants-Appellees. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 63

534 F.2d 63

Janet K. ROBERTSON, and husband, Mark Robertson, Plaintiffs-Appellants, v. Jack J. BALL, and wife, Viola Ball, Defendants-Appellees.

No. 76-1476

Summary Calendar. ^*

United States Court of Appeals, Fifth Circuit.

June 23, 1976.

Michael L. Riddle, Dallas, Tex., for plaintiffs-appellants.

Herbert L. Hooks, Dallas, Tex., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before COLEMAN, GOLDBERG and GEE, Circuit Judges.

PER CURIAM:

On June 19, 1975, Jack and Viola Ball filed in a Texas Domestic Relations Court a "Petition for Visitation," seeking a court order giving them visitation privileges with their grandchild, Jack J. Ball III. The petition alleged that Janet and Mark Robertson, the natural mother and adoptive father of the child, had refused to permit the Balls to visit young Jack. Section 14.03(d) of the Texas Family Code provides:

The court may grant reasonable access rights to either the maternal or paternal grandparents of the child and issue any necessary orders to enforce the decree.

On July 15, 1975, the Robertsons filed a petition for removal in the United States District Court, alleging that the Texas statute quoted above was unconstitutional and that removal was proper under 28 U.S.C. § 1441(b) and under 28 U.S.C. § 1443. The Robertsons then filed in the federal court, in response to the Balls' state court petition, a "motion to dismiss, answer, and request for an injunction," praying for a permanent injunction against the enforcement of Section 14.03 and requesting a three-judge court to hear the application for such relief.

The Balls next step was a motion asking the federal court to remand the cause to the state court. Both parties filed short briefs in regard to this motion. On February 13, 1976, the court below granted the motion and remanded the cause to the Texas Domestic Relations Court. The Robertsons noticed an appeal from that order.

The first question we must face is whether we have jurisdiction to entertain this appeal. With respect to the removal based on § 1441(b), our starting point is § 1447(d) which appears expressly to negate the possibility of appellate review of the remand in this case:

An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise . . .

28 U.S.C. § 1447(d). The United States Supreme Court has recently held that § 1447(d) does not mean exactly what it seems to say, see Thermtron Products, Inc. v. Hermansdorfer, 1976, --- U.S. ----, 96 S.Ct. 584, 46 L.Ed.2d 542, but the exception noted in that case, by which certain remands of § 1441(b) removal can be reviewed through mandamus, has no application to the case before us. ¹ Thermtron held that "only remand orders issued under § 1447(c) and invoking the grounds specified therein that removal was improvident and without jurisdiction are immune from review under § 1447(d)." --- U.S. at ----, 96 S.Ct. at 590, 46 L.Ed.2d at 551. ²

The court below expressly stated that "this action was improperly removed under Section 1441(b) . . ." because the action was not "one of which this court would have had original jurisdiction. . . ." We have no occasion to determine whether or not this conclusion of the district court was well-founded. ³ As we read Thermtron, the express invocation by the district court of the § 1447(c) grounds for remand of a removal under § 1441(b) robs this court of any power "through appeal or otherwise," to review the merits of the remand order. ⁴ As to the part of the remand order dealing with § 1441(b) removal, then, the appeal must be dismissed.

The removal effected under s1443 stands in a different posture, however. The portion of § 1447(d) elided from the above quotation reads . . . except that an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise.

28 U.S.C. § 1443 provides in part:

Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:

(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof . . .

The court below apparently held that § 1443 removal was not proper in this case because "the requisite element of state action" was absent from the state statute being challenged by the Robertsons. Without passing on the validity of that innovative rationale, we find we are able to affirm the remand order on another ground.

In Johnson v. Mississippi, 1975, 421 U.S. 213, 95 S.Ct. 1591, 44 L.Ed.2d 121, the Supreme Court relied on Georgia v. Rachel, 1966, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925, and City of Greenwood v. Peacock, 1966, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944, for the following statement of law:

. . . (A) removal petition under 28 U.S.C. § 1443(1) must satisfy a two-pronged test. First, it must appear that the right allegedly denied the removal petitioner arises under a federal law "providing for specific civil rights stated in terms of racial equality." Georgia v. Rachel, 384 U.S., at 792, 86 S.Ct., at 1790. Claims that prosecution and conviction will violate rights under constitutional or statutory provisions of general applicability or under statutes not protecting against racial discrimination, will not suffice . . .

421 U.S. at 219, 95 S.Ct. at 1595, 44 L.Ed.2d at 128. See also State of Mississippi v. McCollum, 5 Cir. 1975, 513 F.2d 285; Gittman v. Gittman, 3 Cir. 1971, 451 F.2d 155.

We need not advance to the second prong, since the removal petition filed by the Robertsons clearly failed to satisfy the first prong the federal rights claimed by the Robertsons do not arise under federal law "providing for specific civil rights stated in terms of racial equality."

The part of the order remanding the cause removed under § 1443 is affirmed. ⁵

APPEAL DISMISSED in part, and AFFIRMED in part.

* Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

1 In Thermtron, a state court defendant had removed to federal court a diversity action over which federal jurisdiction was clear and conceded. The federal district court remanded the case, however, expressly citing the crowded condition of its docket as the sole reason. The state court defendant petitioned for a writ of mandamus, which the Sixth Circuit found was made unavailable by the express language of 28 U.S.C. § 1447(d).

The Supreme Court reversed and remanded, indicating that § 1447(d)'s prohibition of appellate review applied only when the district court remanded for the reasons cited in 1447(c), which provides in relevant part:

If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case . . . .

The Supreme Court specifically held:

Because the District Court remanded a properly removed case on grounds that he had no authority to consider, he exceeded his statutorily defined power and issuance of the writ of mandamus was not barred by § 1447(d).

--- U.S. at ----, 96 S.Ct. at 593, 46 L.Ed.2d at 554.

2 Although the standard set out in § 1447(c) and tracked in the quoted language from Thermtron is in the conjunctive i. e., is stated as if the district court must find both improvident removal and lack of jurisdiction it is clear that the district court may remand a case improvidently removed even if the defect, e. g., untimeliness under § 1446(b), is not "jurisdictional." See London v. United States Fire Ins. Co., 5 Cir. 1976, 531 F.2d 257, 260:

Thus, even when, as here, jurisdiction exists, the failure to comply with the statutory time requirements is the sort of defect which the District Court was entitled to consider and which caused this case to be improvidently removed within the meaning of § 1447(c), and accordingly § 1447(d) divests this Court of jurisdiction to hear this appeal.

3 Cf. Gittman v. Gittman, 3 Cir. 1971, 451 F.2d 155, in which the appellant had removed a child support action from state court, in which he was the defendant, alleging that ...