Continental Cablevision of St. Paul, Inc. v. U.S. Postal Service, 91-1222

• Decision Date: 07 October 1991
• Docket Number: No. 91-1222,91-1222
• Citation: 945 F.2d 1434
• Parties: CONTINENTAL CABLEVISION OF ST. PAUL, INC., Appellant, v. UNITED STATES POSTAL SERVICE, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1434

945 F.2d 1434

CONTINENTAL CABLEVISION OF ST. PAUL, INC., Appellant, v. UNITED STATES POSTAL SERVICE, Appellee.

No. 91-1222.

United States Court of Appeals Eighth Circuit.

Submitted June 11, 1991.

Decided Oct. 7, 1991.

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.

I.

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 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 something. If it does not mean that removal is limited to those instances specified in chapter 89, what does it mean? We think the natural meaning of the clause is simply that the procedure for removal, including time limits, form of petition, and the like, for Postal Service cases will be that laid out for cases in general in chapter 89. This is, in fact, precisely the meaning ascribed to the clause in question in Township of Middletown v. N/E Regional Office, United States Postal Service, 601 F.Supp. 125 (D.N.J.1985). The Middletown court ruled as follows:

39 U.S.C. § 409, a portion of the Postal Reorganization Act, states that "[a]ny 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." According to the Township, this statute does not create an independent ground for removal from a state court to federal court; rather, it is argued, the power and jurisdiction to remove the case must be found in the provisions of title 28. In support of its proposition, the Township cites Jones Store Co. v. Hammons, 424 F.Supp. 494 (W.D.Mo.1977), which refused to read § 409 as the source of an independent basis for removal. The court in Jones Store, however, failed to provide any explanation or discussion of its conclusion. It did not consider the legislative history of the statute, nor did it examine the plain language of the Act. Even a cursory examination of the language and history of § 409 demonstrates that the Jones Store court incorrectly interpreted the statute. Several legislative reports state, without limitation, that actions against the Postal Service in state courts may be removed to the federal courts. Section 409 itself speaks of the removal of any action brought against the Postal Service. While § 409 also states that the removal is to be "under the provisions of chapter 89 of title 28," there is no indication that this refers to the grounds for removal. It is far more plausible that the quoted language refers to the procedures for removal set forth in § 1446 et seq.

Id. at 126-27 (alternative holding) (footnote omitted).

Accordingly, we hold, as did the District Court in this case, that Section 409(a) does create for the United States Postal Service an independent ground for removal from a state court to a federal court. The general purpose of removal in such a case is to give the Postal Service, an instrumentality of the United States, the protection of a federal forum, if it should desire it. This purpose is advanced by the reading we are giving the statute, and the reading is also the more natural one, in the sense that it avoids making the second sentence of Section 409(a) a redundancy. We agree with the District Court's holding that removal was proper.

II.

The next question is whether the District Court had subject-matter jurisdiction. We quote again, for purposes of convenience, the pertinent part of the first sentence of Section 409(a): "... the United States district courts shall have original but not exclusive jurisdiction over all actions brought by or against the Postal Service." It is hard to see how any question could be raised about the meaning of these words. They are a clear and unequivocal grant of jurisdiction to the district courts. The formula used is almost identical to that used in chapter 85 of title 28, which...