Bell v. Thornburg

• Decision Date: 29 January 2014
• Docket Number: No. 13–30155.,13–30155.
• Citation: 743 F.3d 84
• Parties: Tammy Belmon BELL, Plaintiff–Appellant v. Jon C. THORNBURG, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

743 F.3d 84

Tammy Belmon BELL, Plaintiff–Appellant

v.Jon C. THORNBURG, Defendant–Appellee.

No. 13–30155.

United States Court of Appeals, Fifth Circuit.

Jan. 29, 2014.

Malcolm Xerxes Larvadain, Esq. (Argued), Law Offices of Malcolm X. Larvadain, Alexandria, LA, for Plaintiff–Appellant.

Robert J. David, Jr. (Argued), Alyse Susanne Richard, Juneau David, A.P.L.C., Lafayette, LA, for Defendant–Appellee.

Appeal from the United States District Court for the Western District of Louisiana.

ON PETITION FOR REHEARING

(Opinion December 30, 2013, No. 13–30155, 738 F.3d 696)

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

PER CURIAM:

Plaintiff–Appellant Tammy Belmon Bell's petition for rehearing is DENIED. Defendant–Appellee Jon C. Thornburg's petition for rehearing to clarify opinion is GRANTED.

The opinion, No. 13–30155, 738 F.3d 696, is hereby WITHDRAWN, and the attached substitute opinion is ISSUED in its place.

EDWARD C. PRADO, Circuit Judge:

Tammy Belmon Bell (“Bell”), a former employee of Jon C. Thornburg (“Thornburg”), the standing bankruptcy trustee for the Western District of Louisiana, filed suit in state court alleging that she had been terminated because of her race in violation of the Louisiana Employment Discrimination Law (“LEDL”), Louisiana Revised Statutes §§ 23:301–03, 23:323. Thornburg removed Bell's suit to federal court under the federal officer removal statute, 28 U.S.C. § 1442(a)(1). Bell moved to have the case remanded to state court, while Thornburg moved for summary judgment. The district court determined that removal was proper, and that Thornburg should be granted summary judgment because he did not qualify as an “employer” under the LEDL. Bell appeals both determinations. Because removal was proper and Thornburg does not qualify as an employer under the LEDL, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

The record is almost entirely devoid of any statements, affidavits, or other evidence. The following facts are taken exclusively from the pleadings in Bell's state-court petition. See generally Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir.1995) (“Limiting the removal jurisdiction question to the claims in the state court complaint ... permits early resolution of which court has jurisdiction, so that the parties and the court can proceed with, and expeditiously conclude, the litigation.”).

Bell, an African–American woman, was employed in the office of the Chapter 13 standing trustee for the Western District of Louisiana for fourteen years, most recently as its office manager. In 2008, Thornburg began serving as the standing trustee for Chapter 13 bankruptcies in the Western District of Louisiana. Bell claims that she and Thornburg disagreed frequently, and the quality of her work life deteriorated after Thornburg's arrival. In October 2010, Bell was required to submit to a “peer review,” which three trustees from the National Organization of Chapter 13 Trustees administered. Two of the trustees interviewed Bell, while a third sought input from the local bankruptcy judge. Based in part on statements by the bankruptcy judge that he disliked Bell, the peer review panel suggested to Thornburg that Bell be fired. Thornburg disagreed, but nonetheless believed Bell should be given a different position. Bell remained on the office's payroll while Thornburg looked for another position for her in the office, but problems between Thornburg and Bell persisted, and Thornburg ultimately terminated Bell on April 4, 2011. She was replaced by a white woman, who Bell contends was less qualified.

B. Procedural Background

On March 6, 2012, Bell sued Thornburg in Louisiana state court, alleging that she had been terminated because of her race in violation of the LEDL. Thornburg removed to federal district court in the Western District of Louisiana on the theory that, as a standing trustee, he was a person acting under an officer of the United States and thus entitled to remove the suit under the federal officer removal statute, 28 U.S.C. § 1442(a)(1). After the removal order was granted, Thornburg moved for summary judgment, arguing that he had not employed twenty or more employees for twenty or more weeks, as is required to qualify as an “employer” under the LEDL, Louisiana Revised Statute § 23:302(2). Bell, meanwhile, moved to have the case remanded to state court, arguing that Thornburg was a private citizen not covered by the federal officer removal statute.

The magistrate judge assigned to the case found that this Court's decision in Cromelin v. United States, 177 F.2d 275 (5th Cir.1949), precluded the application of § 1442(a)(1) to Thornburg. Cromelin considered whether the Federal Tort Claims Act applied to bankruptcy trustees and held that a “trustee, like a receiver, is an officer of [the] court, appointed by the court, directed by the court, and paid by the court from the funds in the court. He is in no sense an agent or employee or officer of the United States.” 177 F.2d at 277. Therefore Thornburg, the magistrate judge reasoned, could not invoke § 1442(a)(1), which by its terms applies only to “[t]he United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof.” The magistrate judge also noted, however, that regardless of whether § 1442(a)(1) applied to Thornburg, removal under any part of § 1442 carries with it the additional requirement that the mover assert “a colorable claim of federal immunity or other federal defense.” See Mesa v. California, 489 U.S. 121, 124, 129, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989). Because Thornburg had provided nothing more than the conclusory statement in his notice of removal that “he has a valid and colorable federal defense to all claims made,” the magistrate judge determined that removal had been improper and recommended remanding the case to state court.

The district court disagreed with the magistrate judge's conclusion that removal was improper. The court clarified that even if § 1442(a)(1) covers only officers of the United States and those “acting under” them, § 1442(a)(3) provides the same removal privileges to officers of the courts of the United States. See28 U.S.C. § 1442(a)(3) (offering the federal officer removal privilege to “[a]ny officer of the courts of the United States, for or relating to any act under color of office or in the performance of his duties”). Thornburg, who, according to the district court, was an officer of the courts, was thus free to remove under the statute. With respect to the magistrate judge's determination that Thornburg had failed to meet the requirement that he aver a federal defense, the court relied on Bell's allegation in her state-court petition that Thornburg “used the ‘peer review’ as the reason for his alleged discriminatory actions leading to Plaintiff's termination.” The court concluded that because the peer review purportedly involved the presiding bankruptcy judge, Thornburg had sufficiently averred a colorable federal defense, and it denied Bell's remand request.¹

The district court then turned to Thornburg's motion for summary judgment. The court agreed with Thornburg that because he had not employed more than twenty people during twenty or more weeks in the last year, he could not be considered an employer under the LEDL. The court thus concluded that the LEDL did not apply to Thornburg, and granted his summary judgment motion. Bell timely appealed.

II. DISCUSSION

A. Standard of Review

This Court reviews the denial of a motion to remand de novo. Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 722 (5th Cir.2002). The Court also reviews a grant of summary judgment de novo, viewing all evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party's favor. Pierce v. Dep't of the U.S. Air Force, 512 F.3d 184, 186 (5th Cir.2007). “[S]ummary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted).

B. Whether the District Court Properly Exercised Jurisdiction over Bell's Suit Against Thornburg

The federal officer removal statute, 28 U.S.C. § 1442, creates an exception to the well-pleaded complaint rule. The statute states, in relevant part:

(a) A civil action or criminal prosecution that is commenced in a State court and that is against or directed to any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:

(1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue....

(3) Any officer of the courts of the United States, for or relating to any act under color of office or in the performance of his duties....

28 U.S.C. § 1442. Thus, to invoke the federal officer removal statute, Thornburg must both act under an officer of the United States and have averred a colorable federal defense. See Mesa, 489 U.S. at 133–34, 109 S.Ct. 959. We address each of these requirements in turn.

1. Whether Thornburg “act[s] under” an officer of the United States such that removal under the federal officer removal statute is available to him

Bell argues that this Court should remand her claim to state court because, based on this Court's decision in Cromelin, Thornburg...