945 F.2d 1434 (8th Cir. 1991), 91-1222, Continental Cablevision of St. Paul, Inc. v. United States Postal Service

Docket Nº:91-1222.
Citation:945 F.2d 1434
Case Date:October 07, 1991
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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945 F.2d 1434 (8th Cir. 1991)




No. 91-1222.

United States Court of Appeals, Eighth Circuit

October 7, 1991

Submitted June 11, 1991.

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Robert Alan Alsop, Minneapolis, Minn., argued (John G. Hoeschler and Mary G. Dobbins, on the brief), for appellant.

Mary E. Carlson, Minneapolis, Minn., for appellee.

Before ARNOLD and MAGILL, Circuit Judges, and BATTEY, [*] District Judge.

ARNOLD, Circuit Judge.

This appeal arises out of a dispute over a lease covering certain real property in St. Paul, Minnesota. The United States Postal Service owns the land and leased it to Continental Cablevision of St. Paul, Inc. On the merits, the issue is whether Continental has effectively exercised an option to renew the lease. This appeal, however, is not about the merits. The District Court, after first holding that the Postal Service had properly removed the case from a Minnesota state court, dismissed the suit for lack of jurisdiction over the subject matter. Continental appeals, contending that removal was improper, and, in the alternative, that the District Court (assuming proper removal) did have jurisdiction. We hold that removal was proper, and that the District Court has jurisdiction. We therefore reverse.


The case began when Continental filed suit against the Postal Service in a state district court. The complaint asks for a declaration that Continental has given effective notice of renewal of the lease. It also requests that the Postal Service be enjoined from disturbing Continental's possession of the space in question. The complaint also requests an order requiring the Postal Service to accept regular monthly rent in a certain amount, with the amount to be adjusted as appropriate if, at the conclusion of the case, the Court fixes some other amount as the appropriate rental under the lease as renewed. (The lease contains provisions for adjustment of rent over time in the event of renewal for one or more additional terms.) Thus, the suit is not for damages, but rather for declaratory and injunctive relief, with a possible monetary adjustment if necessary to do complete equity between the parties.

The Postal Service filed a timely notice of removal "pursuant to Title 28, United States Code, Section 1441 and 1446(a)...." Joint Appendix (J.A.) A-78. The Postal Service then moved to dismiss the action, citing Fed.R.Civ.P. 12(b)(1) (lack of subject-matter jurisdiction) and 12(b)(6) (failure to state a claim). Id. at A-80. Continental, on the other hand, moved for an order remanding the case to the state court, arguing that removal was improper.

The jurisdiction of the lower federal courts is entirely a creature of statute. So is the privilege of removal from a state court to a federal court. The case, then, is one of statutory interpretation, and, as it happens, a single subsection addresses both the question of jurisdiction and that of removal. This provision reads in full as follows:

§ 409. Suits by and against the Postal Service

(a) Except as provided in section 3628 of this title, the United States district courts shall have original but not exclusive jurisdiction over all actions brought by or against the Postal Service. Any action brought in a State court to which the Postal Service is a party may be removed to the appropriate United States district court under the provisions of chapter 89 of title 28.

39 U.S.C. § 409(a). The reference to "section 3628 of this title" may at once be put aside. Section 3628 concerns decisions of the Board of Governors of the United

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States Postal Service with respect to rates proposed by the Postal Rate Commission. Such decisions, the section provides, may be appealed to the courts of appeals. That exception has nothing to do with the present case, which is therefore governed by Section 409(a).

The second sentence of Section 409(a) addresses the subject of removal. Obviously this is an "action brought in a State court to which the Postal Service is a party...." So what's the problem? The language of the statute, for once, seems utterly plain. Continental, however, citing Jones Store Co. v. Hammons, 424 F.Supp. 494, 496 (W.D.Mo.1977), claims that the statute creates no independent ground of removal, but, rather, allows removal only if one of the removal statutes contained in chapter 89 of Title 28, a chapter comprising sections 1441 through 1452 of the Judicial Code, applies.

The Jones case is in point and says exactly what Continental claims, but it is not, in our opinion, well reasoned. The opinion quotes Section 409 and then states as follows:

Power and jurisdiction to remove the garnishment proceedings involved in the pending cases must therefore be found in Chapter 89 of Title 28, United States Code. For it is clear that the portion of Section 409, Title 39, United States Code, which confers concurrent jurisdiction on both the State and federal courts over actions brought by or against the Postal Service does not create an independent ground of removal.

424 F.Supp. at 496 (footnote omitted). This reasoning is a complete non sequitur. It is perfectly true that "the portion of Section 409 ... which confers concurrent jurisdiction on both the State and federal courts over actions brought by or against the Postal Service does not create an independent ground of removal." This reference is to the first sentence of Section 409. Removal is addressed in the second sentence. A provision creating original jurisdiction does not, of its own force, create removal jurisdiction. This hardly answers the question before us. The issue of removal is governed by the second sentence of Section 409(a), a sentence which the Jones court's reasoning fails to address directly. Apparently the Jones court was of the view that the clause "under the provisions of chapter 89 of Title 28," with which the second sentence of Section 409(a) ends, has substantive significance, in the sense that it was intended to limit removal to those instances specified in chapter 89. But if this is the meaning of the phrase, why did Congress bother to enact the second sentence? It adds absolutely nothing to what would have been the law in its absence. Chapter 89 of Title 28 was already on the books and available to any litigant, including the Postal Service. The Jones court's reading of the second sentence of Section 409(a) reduces it to nothing more than a superfluous cross-reference.

The reference to chapter 89, of course, must (or at least, should) mean...

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