Archuleta v. Lacuesta, 96-2221

• Decision Date: 03 December 1997
• Docket Number: No. 96-2221,96-2221
• Citation: 131 F.3d 1359
• Parties: 97 CJ C.A.R. 3041 Rose ARCHULETA, Personal Representative of the Estate of Marvin Archuleta, Plaintiff--Appellee, v. Wesley LACUESTA, Ronald Hensinger, John Denko, New Mexico State Police Department, and New Mexico Department of Public Safety, Defendants--Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1359

131 F.3d 1359

97 CJ C.A.R. 3041

Rose ARCHULETA, Personal Representative of the Estate of Marvin Archuleta, Plaintiff--Appellee, v. Wesley LACUESTA, Ronald Hensinger, John Denko, New Mexico

State Police Department, and New Mexico Department

of Public Safety, Defendants--Appellants.

No. 96-2221.

United States Court of Appeals, Tenth Circuit.

Dec. 3, 1997.

Robert R. Rothstein and John L. Sullivan, Rothstein, Donatelli, Hughes, Dahlstrom, Cron & Schoenburg, Santa Fe, New Mexico, for Plaintiff-Appellee.

Louis N. Colon, Legal Bureau/RMD, State of New Mexico, Santa Fe, New Mexico, for Defendants-Appellants.

Before ANDERSON, TACHA, and BALDOCK, Circuit Judges. ^*

TACHA, Circuit Judge.

Plaintiff Rose Archuleta originally filed this action in New Mexico state court, seeking damages for violations of federal and state law. After Defendants removed the case to federal district court, Archuleta filed a motion to remand the action to state court. The district court granted the motion, ruling that the Eleventh Amendment barred some of the claims in federal court and further that the entire action, including the federal claims not barred by the Eleventh Amendment, should be remanded because removal was not authorized by 28 U.S.C. § 1441(a). Defendants seek to appeal the remand, or, alternatively, if we determine that the remand order is reviewable but not appealable because it is not a final order, they apply for a writ of mandamus reversing the remand. Because the district court remanded this action under 28 U.S.C. § 1441(c), however, we do not have the power to review the remand order either through appeal or mandamus. See 28 U.S.C. § 1447(d). Consequently, we dismiss the appeal and the application for mandamus.

Background

Rose Archuleta, the successor personal representative of the estate of Marvin Archuleta, brought suit in the state district court for the Fourth Judicial District, County of San Miguel, New Mexico, alleging that New Mexico State Police officers used excessive force that resulted in the wrongful death of Marvin Archuleta. Defendants include the chief of the New Mexico State Police, the New Mexico State Police Department, the In a Memorandum Opinion dated August 15, 1996, the district court granted Archuleta's motion to remand the entire action to state court. Citing Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100-03, 104 S.Ct. 900, 907-10, 79 L.Ed.2d 67 (1984), and Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 1355-56, 39 L.Ed.2d 662 (1974), the court explained that the Eleventh Amendment bars suits in federal court for damages against states, state agencies, and state officials in their official capacities, unless the state unequivocally waives its immunity or Congress expressly abrogates the state's immunity in creating a statutory cause of action. See Archuleta v. Lacuesta, No. 6:95-CV-1274 MV/DJS, slip op. (unnumbered page 2) (D.N.M. Aug. 15, 1996). The district court noted that Congress did not abrogate states' Eleventh Amendment immunity in enacting 42 U.S.C. § 1983, see Quern v. Jordan, 440 U.S. 332, 341, 99 S.Ct. 1139, 1145, 59 L.Ed.2d 358 (1979), and that New Mexico has not waived its immunity from suit in federal court, see N.M. STAT. ANN. § 41-4-4(F) (Michie Supp.1996). Thus, the court ruled that it lacked jurisdiction over the claims against the state defendants, including those against the individual state officials in their official capacities, under the Eleventh Amendment. The court found that it only had original jurisdiction over Archuleta's federal claims against the state officials in their individual capacities, though it could also have exercised supplemental jurisdiction, under 28 U.S.C. § 1367(a), over the state law claims against the officials in their individual capacities. Nevertheless, the district court determined that the entire action, including those claims over which it had jurisdiction, had to be remanded to state court "because the Eleventh Amendment precludes this civil action from being one which could have been originally filed in federal court" and thus was not removable to federal court under 28 U.S.C. § 1441(a). Archuleta v. Lacuesta, slip op. (unnumbered page 6) (citing 28 U.S.C. § 1447(c)).

New Mexico Department of Public Safety, and various New Mexico State Police officers. Archuleta's amended complaint asserted violations of 42 U.S.C. § 1983 and the New Mexico Tort Claims Act, N.M. STAT. ANN. § 41-4-12 (Michie Supp.1996). Defendants removed the case to the United States District Court for the District of New Mexico by notice of removal filed on October 25, 1995, based on the federal claims under § 1983. On October 31, 1995, Archuleta filed a motion to remand the action to state court under 28 U.S.C. § 1447(c).

Discussion

The removal statute, 28 U.S.C. § 1441(a), states in relevant part, "... [A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants...." Some courts, including the Fifth and Seventh Circuits, have interpreted § 1441(a)'s reference to a "civil action" as requiring that the federal district court to which the case is removed have original (or supplemental) jurisdiction over the action in its entirety, foreclosing the possibility of piecemeal removal. See McKay v. Boyd Constr. Co., 769 F.2d 1084, 1086-87 (5th Cir.1985); Frances J. v. Wright, 19 F.3d 337, 340-42 (7th Cir.), cert. denied, 513 U.S. 876, 115 S.Ct. 204, 130 L.Ed.2d 134 (1994). According to Frances J. and McKay, "if even one claim in an action is jurisdictionally barred from federal court by a state's sovereign immunity, or does not otherwise fit within the original or supplemental ... jurisdiction of the federal courts, then, as a consequence of § 1441(a), the whole action cannot be removed to federal court." Frances J., 19 F.3d at 341 (citing McKay with approval).

Other circuits, however, have rejected this interpretation of § 1441, requiring the district courts to remand those claims barred by the Eleventh Amendment and retain jurisdiction over the claims not barred by the Eleventh Amendment. See Kruse v. Hawaii, 68 F.3d 331, 334-35 (9th Cir.1995); Henry v. Metro. Sewer Dist., 922 F.2d 332, 338-39 (6th Cir.1990). In deciding to remand this case in its entirety, the district court relied on other cases from the same federal district, see, e.g., Flores v. Long, 926 F.Supp. 166 (D.N.M.1995), appeal dismissed, 110 F.3d 730 (10th Cir.1997), and followed the approach of the Fifth and Seventh Circuits. See Archuleta v. Lacuesta, slip op. (unnumbered page 4).

The Tenth Circuit has not yet had the opportunity to decide whether the presence of claims barred by the Eleventh Amendment requires remand of an entire civil case to the state court from which it was removed, or only remand of the claims barred by the Eleventh Amendment. We do not determine today which approach the Tenth Circuit will follow because, under 28 U.S.C. § 1447(d), we lack jurisdiction to review the remand order.

This result is dictated by our decision in Flores v. Long, 110 F.3d 730 (10th Cir.1997). Flores involved facts nearly identical to those presented in this case. The district court there had remanded the entire action to state court after analyzing the split among the circuits on this issue and concurring with the unitary "civil action" approach of Frances J. and McKay. Id. at 733. In dismissing the defendants' appeal and mandamus application in Flores, this court addressed the threshold question of whether we had jurisdiction to review the district court's remand order in light of 28 U.S.C. § 1447(d). Id. at 731. That provision states in relevant part, "An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise...." The Supreme Court has interpreted § 1447(d) more narrowly than its language suggests, barring appellate review only if the district court remands on grounds permitted by § 1447(c). Things Remembered, Inc. v. Petrarca, 516 U.S. 124, ----, 116 S.Ct. 494, 497, 133 L.Ed.2d 461 (1995); Thermtron Prod., Inc. v. Hermansdorfer, 423 U.S. 336, 345-46, 96 S.Ct. 584, 590-91, 46 L.Ed.2d 542 (1976).

One of the grounds for remanding a case under § 1447(c) is the district court's lack of subject matter jurisdiction. After examining the district court order in Flores, we held in that case that we could not entertain the defendants' appeal or mandamus application because the district court had based its remand on its lack of subject matter jurisdiction.

A district court's assertion that it lacks subject matter jurisdiction, and even explicit references to § 1447(c), does not automatically render a remand order nonreviewable under § 1447(d). See Flores, 110 F.3d at 732. In Flores, we explained that we will determine by independent review the actual grounds upon which the district court believed it was empowered to remand. Id. The district court need not be correct in its determination that it lacked subject matter jurisdiction, however, so long as it made that determination in good faith. See id. at 733.

In Flores, we interpreted the ruling by the district court as a good faith determination that the district court lacked subject matter jurisdiction for two reasons. First, it was reasonable for the Flores district court to treat Eleventh Amendment immunity as a jurisdictional bar because it is unclear whether the Supreme Court would consider Eleventh Amendment immunity to be an affirmative defense or a jurisdictional bar (which nonetheless can be waived) for the purposes of the removal statute. Id. at 732. The Supreme Court has long recognized that the Eleventh Amendment defense possesses qualities both of subject matter jurisdiction, in that it can be raised for the first time on appeal, see, e.g., Edelman v. Jordan, 415 U.S. 651, 677-78, 94 S.Ct. 1347, 1362-63, 39 L.Ed.2d 662 (1974), and that of...