Gutierrez v. Flores

• Decision Date: 22 September 2008
• Docket Number: No. 07-41285.,07-41285.
• Citation: 543 F.3d 248
• Parties: Rodolfo GUTIERREZ, Plaintiff-Appellant, v. Ramiro FLORES, Aurelino Garcia, Hector Gallardo, and Deborah Goding, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

543 F.3d 248

Rodolfo GUTIERREZ, Plaintiff-Appellant, v. Ramiro FLORES, Aurelino Garcia, Hector Gallardo, and Deborah Goding, Defendants-Appellees.

No. 07-41285.

United States Court of Appeals, Fifth Circuit.

September 22, 2008.

Jon Daniel Brooks, Brooks, LLP, Corpus Christi, TX, for Plaintiff-Appellant.

James Roddy Tanner, Christopher Alan Troutt, Tanner & Associates, PC, Fort Worth, TX, Kevin M. Grile, Am. Fed. of Government Employees, Chicago, IL, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before BARKSDALE, BENAVIDES and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

This case involves a dispute among members of the American Federation of Government Employees, Local 2142 (the "union"). Appellant Rodolfo Gutierrez ("Gutierrez"), a former Vice President of the union, brought suit in Texas state court alleging libel, libel per se, and intentional infliction of emotional distress. Appellees removed the action to federal district court, alleging that Gutierrez's claims were completely preempted by federal law under the Civil Service Reform Act of 1978, 5 U.S.C. § 7101 et seq. ("CSRA"). The district court denied Gutierrez's motion to remand the case to state court and subsequently granted Appellees' motion for summary judgment. Based upon the unique circumstances presented here, we find that the CSRA does not completely preempt Gutierrez's claim. Therefore, the motion to remand should have been granted. Because we find that no federal subject matter jurisdiction existed, we vacate the district court's judgment and remand this case to the district court with instructions to remand the cause to Texas state court.

I.

Gutierrez is a federal government employee at the Corpus Christi Army Depot, located at Naval Air Station-Corpus Christi. Ramiro Flores, Aurelino Garcia, Hector Gallardo, and Deborah Goding (collectively, "Appellees") are also federal government employees at the Corpus Christi Army Depot. At all relevant times, Gutierrez, Flores, Garcia, Gallardo, and Goding were members of the union.

From 1997-2000, while Gutierrez was a Vice President of the union, he was responsible for renting meeting rooms for the monthly union meetings. Gutierrez received a check for $250 from the union treasurer, of which $95 was for the room rental cost and $155 was for the cleaning deposit. Gutierrez would clean the room himself after the meetings and retain the $155 deposit. In January 2000, a new union board was elected, including Jose Gonzales as President, Kenneth Weeks as Chief Steward, and Deborah Goding as Secretary. At the January 2000 meeting, Gutierrez admitted to keeping the cleaning deposit, and the newly elected board asked him to discontinue the practice, which he did. Goding contacted the U.S. Department of Labor ("DOL") and the Federal Bureau of Investigation ("FBI") regarding Gutierrez's actions. The DOL, FBI, and Department of Defense, Criminal Investigations Division ("CID") conducted a joint investigation. In 2001, DOL and FBI investigators interviewed Goding and told her "we know" that Gutierrez retained the cleaning deposits.

On June 12, 2002, DOL and CID investigators interviewed Gutierrez. Gutierrez signed a voluntary statement stating, "I kept the difference, approximately $155 per month, for my own personal benefit and use." Furthermore, the statement provided that, "I've been informed that the total amount that I kept without membership consent or approval exceeds $4000." On October 2, 2002, the DOL issued a "report of investigation" summarizing its findings, noting that "[e]vidence established that between November 1997 and January 2000, while on government property, Gutierrez embezzled not less than $4325 by retaining the union's deposit ($150) on the monthly membership meeting room rather than returning it to the local after the meeting." Notwithstanding such findings, the government declined to prosecute Gutierrez.

In the spring of 2004, the Department of the Army (the "Army") suspended Gutierrez for thirty days for retaining the cleaning deposits. Gutierrez—still a Vice President of the union—challenged the suspension via an appeal to the Merit Systems Protection Board ("MSPB").¹ Goding was a witness for the Army at the MSPB hearing. Shortly before the hearing, Goding learned from Army personnel that Gutierrez had signed the voluntary statement in June 2002 and she learned from a former union official that the Army had taken personnel action against Gutierrez. At the hearing, Gutierrez was represented by an employee of the union's national office.

Goding was upset that Gutierrez remained a union official and that union funds were spent on his representation. Goding spoke with three other union members—Flores, Garcia, and Gallardo—about this matter. On June 23, a letter was mailed to the DOL, John Cage (the union's National President), and Jose Gonzales (the union's Local President).² The letter stated that Gutierrez "was found guilty by the [DOL] and [FBI] for Embezzlement of Union monies for approximately $4000.00." The letter also asked why "a representative" was provided "at the expense of the Union" and why Gutierrez was not removed from union office when he had "signed a statement for the [DOL] admitting he took these funds and ... never attempted to reimburse [the union]." The letter was not shown to any other person, including other union members.

In June 2005, Gutierrez brought suit against Flores, Garcia, and Gallardo in Texas state court alleging libel, libel per se, and intentional infliction of emotion distress as a result of the June 2004 letter. On July 1, 2005, Goding sent an e-mail to Kenneth Weeks, then Chief Steward of the union, stating that the union should provide Flores, Garcia, and Gallardo with representation. The e-mail stated that Gutierrez committed "theft" and had been found "guilty."

On July 14, 2005, the case was removed to federal district court under the theory that complete preemption of the claims by the CSRA created federal question jurisdiction. The district court denied Gutierrez's motion for remand.³ Gutierrez amended his complaint on December 22, 2006, by adding Goding as a defendant and alleging that the July 1 e-mail from Goding to Weeks was a defamatory document. After the case was transferred to another district court judge, Appellees filed a motion for summary judgment. In his opposition to the motion for summary judgment, Gutierrez expressly abandoned his intentional infliction of emotional distress claim.

By order dated November 16, 2007, the district court granted Appellees' motion for summary judgment, finding that, under Texas law, Gutierrez could not establish that Appellees were liable for libel.⁴ Specifically, the district court held that because Appellees enjoyed a qualified privilege, Gutierrez had to establish actual malice, which he failed to do. Furthermore, the district court held that "there is no evidence that [Appellees'] statements were objectively untrue." Gutierrez timely appealed from the denial of his motion to remand and the grant of summary judgment for Appellees.

II.

We review the denial of a motion to remand to state court de novo. Campbell v. Stone Ins., Inc., 509 F.3d 665, 669 (5th Cir.2007). We also review the grant of summary judgment de novo. Id. Summary judgment is appropriate only where "there is no genuine issue as to any material fact and ... the movant is entitled to a judgment as a matter of law." Fed. R.Civ.P. 56(c).

III.

Gutierrez argues that the district court did not have federal question jurisdiction because no federal question is presented on the face of his well-pleaded complaint. Accordingly, Gutierrez argues that the district court should have remanded. We agree.

A. Removal Jurisdiction

A district court has removal jurisdiction in any case where it has original jurisdiction. 28 U.S.C. § 1441(a). A district court has original federal question jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. The defendant seeking removal bears the burden of demonstrating that a federal question exists. In re Hot-Hed, Inc., 477 F.3d 320, 323 (5th Cir.2007). Because removal raises significant federalism concerns, the removal statute is strictly construed "and any doubt as to the propriety of removal should be resolved in favor of remand." Id.

Under the well-pleaded complaint rule, "a federal court has original or removal jurisdiction only if a federal question appears on the face of the plaintiff's well-pleaded complaint; generally, there is no federal jurisdiction if the plaintiff properly pleads only a state law cause of action." Bernhard v. Whitney Nat'l Bank, 523 F.3d 546, 551 (5th Cir.2008). "[T]he fact that federal law may provide a defense to a state claim is insufficient to establish federal question jurisdiction." Id. at 550.

In his original complaint, Gutierrez pleaded libel, libel per se, and intentional infliction of emotional distress. These causes of action arise under Texas statutory and common law. See Tex. Civ. Prac. & Rem.Code Ann. § 73.001 (2005) (libel); Doubleday & Co. v. Rogers, 674 S.W.2d 751, 759 (Tex.1984) (libel per se); Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993) (intentional infliction of emotional distress). Appellees correctly note, however, that "[a] corollary to the well-pleaded complaint doctrine is that Congress may so completely preempt a particular area that any civil complaint raising this select group of claims is necessarily federal in character."⁵ Johnson v. Baylor Univ., 214 F.3d 630, 632 (5th Cir.2000) (internal quotation omitted).

This Circuit has stated that in order to establish complete preemption, the defendant must show that:

(1) the statute contains a civil enforcement provision that creates a cause of action that both replaces and protects the analogous area of state law; (2) there is a specific...