Freeman v. Bechtel, 2:95CV00698.

• Decision Date: 23 May 1996
• Docket Number: No. 2:95CV00698.,2:95CV00698.
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Renata FREEMAN, for herself and on behalf of all other persons similarly situated, Plaintiff, v. Louis BECHTEL, in his official capacity as Director of the Guilford County Department of Social Services, Doyle Earle, in his official capacity as Chairman of the Board of the Department of Social Services of Guilford County, a corporation, North Carolina Department of Human Resources, and Dan Glickman, in his official capacity as Secretary, United States Department of Agriculture, Defendants.

936 F. Supp. 320

Renata FREEMAN, for herself and on behalf of all other persons similarly situated, Plaintiff, v. Louis BECHTEL, in his official capacity as Director of the Guilford County Department of Social Services, Doyle Earle, in his official capacity as Chairman of the Board of the Department of Social Services of Guilford County, a corporation, North Carolina Department of Human Resources, and Dan Glickman, in his official capacity as Secretary, United States Department of Agriculture, Defendants.

No. 2:95CV00698.

United States District Court, M.D. North Carolina, Greensboro Division.

May 23, 1996.

COPYRIGHT MATERIAL OMITTED

Stanley B. Sprague, Richard W. Wells, Central Carolina Legal Services, Inc. Greensboro, NC, for Renata Freeman.

James Edwin Pons, Lynne G. Schiftan, Office of Guilford County Attorney, Greensboro, NC, for Louis Bechtel, Doyle Early.

Elizabeth Oxley, N.C. Department of Justice, Raleigh, NC, for North Carolina Dept. of Human Resources.

Carol A. Evans, Department of Justice — Civil Division, Federal Programs Branch, Washington, DC, for Dan Glickman.

MEMORANDUM OPINION

OSTEEN, District Judge.

This matter comes before the court on Plaintiff's Motion to Remand.

For the reasons stated herein, the motion will be denied.

I. FACTS

Plaintiff Renata Freeman filed a class action Complaint in Guilford County Superior Court on May 18, 1995. Plaintiff named as defendants: (1) Louis Bechtel ("Bechtel"), director of the Guilford County Department of Social Services ("DSS"); (2) Doyle Early ("Early"), chairman of the Board of the Guilford County DSS; and (3) the North Carolina Department of Human Resources ("NCDHR").

Plaintiff alleges that she submitted an application for food stamps at the Guilford County DSS office. State agencies typically are required to process food stamp applications within thirty days. In certain situations, however, applicants are entitled to expedited processing in which the agency must process the food stamp application within five days. 7 U.S.C. § 2020(e)(9).

Plaintiff claims that she was eligible for expedited processing because she was a "homeless individual" as defined by federal food stamp regulations. 7 C.F.R. § 271.2. Plaintiff was told that she was ineligible for expedited processing; however, she was not informed in writing.

Federal regulations provide for agency conferences within two working days for households that wish to contest the denial of expedited processing.¹ 7 C.F.R. § 273.15(d). Plaintiff alleges that she was not notified (orally or in writing) of her right to appeal the denial of expedited processing.

Plaintiff alleges that Defendants' implementation of federal food stamp law violates: (1) the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution; (2) 42 U.S.C. § 1983; and (3) the Law of the Land Clause of Article I, Section 19 of the North Carolina Constitution.

Defendants moved to dismiss for failure to join the United States Department of Agriculture ("USDA") as a necessary party. Alternatively, Defendants moved to require that the USDA be joined as a defendant. On September 6, 1995, the Guilford County Superior Court held that the USDA was a necessary party and ordered Plaintiff to join the USDA. On September 12, 1995, Plaintiff filed an Amended Complaint naming Dan Glickman, the Secretary of the USDA ("Secretary") as a defendant. On September 29, 1995, Defendant Secretary removed the case to this court based on: (1) federal question jurisdiction, 28 U.S.C. § 1441(b); and (2) 28 U.S.C. § 1442(a)(1). On October 26, 1995, Defendants Bechtel, Early, and NCDHR filed notices of consent to Defendant Secretary's removal petition.

II. DISCUSSION

A. The Food Stamp Act

In order to "safeguard the health and well-being of the Nation's population," 7 U.S.C. § 2011, Congress enacted the Food Stamp Act ("the Act"), id. §§ 2011-2032. The Act established a federally-funded state-administered program to supplement the nutritional needs of low income households. Id. § 2011. Eligible households receive coupons which may be used to purchase food from approved retail stores. Id. § 2013(a). The program is funded entirely by the federal government through the USDA. Id. § 2027. State agencies, like NCDHR, administer the program, making determinations of eligibility and distributing coupons to program participants. Id. § 2020. However, in administering the program, the state agencies are required to adhere to uniform national standards of eligibility as established by the Secretary of Agriculture. Id. § 2014(b). The Act provides for injunctive relief and withholding of funds from a state that "without good cause" does not comply with the Act and regulations issued pursuant to the Act. Id. § 2020(g).

B. Motion to Remand

Removal of civil cases to federal court is an infringement on state sovereignty. Consequently, the statutory provisions regulating removal must be strictly applied. A federal court should not extend its jurisdiction beyond the boundaries drawn by those provisions. Mason v. International Business Machines, Inc., 543 F.Supp. 444 (M.D.N.C.1982) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 85 L.Ed. 1214 (1941)).

When one party makes a motion to remand a case to the state court, "the burden is on the party seeking to preserve the removal, not the party moving for remand, to show that the requirements for removal have been met." 14A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure § 3739, at 574 (1985 & Supp.1995). Accordingly, Defendants must demonstrate that the removal requirements have been satisfied.

C. Removal Under 28 U.S.C. § 1442(a)(1)

In relevant part, 28 U.S.C. § 1442(a) provides that

a civil action ... commenced in a State court against any of the following persons 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) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office....

Section 1442(a)(1) "is a pure jurisdictional statute, seeking to do nothing more than grant district court jurisdiction over cases in which a federal officer is a defendant." Mesa v. California, 489 U.S. 121, 136, 109 S.Ct. 959, 968, 103 L.Ed.2d 99 (1989).

In a recent decision, Chief Judge Frank W. Bullock, Jr. addressed the issue of removal under § 1442(a)(1):

Although the Secretary of Agriculture intervened in the present case in his own name, "official-capacity suits ... `generally represent only another way of pleading an action against an entity of which an officer is an agent.'" Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985) (quoting Monell v. Department of Social Servs., 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 2035 n. 55, 56 L.Ed.2d 611 (1978)); see also Gray v. Laws, 51 F.3d 426, 430-31 (4th Cir.1995); Giancola v. West Virginia Dep't of Public Safety, 830 F.2d 547, 550 (4th Cir.1987). A suit against an officer in the officer's official capacity is, "in all respects other than name, to be treated as a suit against the entity." Graham, 473 U.S. at 166, 105 S.Ct. at 3105.

Section 1442(a)(1) does not permit removal by federal agencies. International Primate Protection League v. Administrators of Tulane Educ. Fund, 500 U.S. 72, 76, 79-87, 111 S.Ct. 1700, 1703, 1705-10, 114 L.Ed.2d 134 (1991); see also Guadalupe-Blanco River Authority v. City of Lytle, 937 F.2d 184, 185-86 (5th Cir.1991); American Policyholders Ins. Co. v. Nyacol Prods., 989 F.2d 1256, 1259 (1st Cir.1993); Western Sec. Co. v. Derwinski, 937 F.2d 1276, 1278-79 (7th Cir.1991). Nor does § 1442(a)(1) permit removal by a federal officer nominally named as the defendant in the officer's official capacity where the suit is treated as a suit against the officer's agency. American Policyholders, 989 F.2d at 1259-61; see also Western Sec., 937 F.2d at 1278-79. Allowing removal under § 1442(a)(1) by a federal officer named in his official capacity where such a suit is treated as a suit against the agency while refusing to allow removal by a federal agency "would spawn a glaring interpretive inconsistency and, in the bargain, impugn the Primate Court's reasoning." American Policyholders, 989 F.2d at 1260.

Thomas v. North Carolina Dep't of Human Resources, 898 F.Supp. 315, 318-19 (M.D.N.C.1995). Therefore, § 1442(a)(1) does not confer subject matter jurisdiction over the present case to this court.

D. Removal Under 28 U.S.C. § 1441(b)

Defendant Secretary also cites 28 U.S.C. § 1441(b) as a basis for removal jurisdiction. Section 1441(b) provides, in pertinent part, that "any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties." Thus, the court must determine whether it has "original jurisdiction" over the case at bar.

The plaintiff is the master of her claims. See generally 14A Wright, Miller & Cooper, supra § 3722, at 266-68. If a plaintiff chooses not to assert a federal claim, a defendant cannot remove on the basis of a federal question even if the plaintiff could have asserted a federal claim. Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429-30, 96 L.Ed.2d 318 (1987); Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 24, 33 S.Ct. 410, 411, 57 L.Ed. 716 (1913). If the plaintiff asserts a claim based on federal law, however, then the defendant can properly remove the case under section 1441(b) regardless of whether the defendant can properly remove the case pursuant to any other removal provision.

In Thomas, the court decided that jurisdiction under section 1441(b) was not proper because "all of Plaintiff's claims turn on questions of North Carolina state law. These questions include issues regarding...