Hernandez-Agosto v. Romero-Barcelo, HERNANDEZ-AGOST

• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)
• Writing for the Court: Before CAMPBELL, Chief Judge, and COFFIN and BREYER; PER CURIAM
• Citation: 748 F.2d 1
• Parties: Miguelresident of the Senate of Puerto Rico on his Behalf and as Representative of the Senate of Puerto Rico and of the Judicial Commission of the Senate, Plaintiff, Appellant, v. Carlosovernor of the Commonwealth of Puerto Rico, Defendant, Appellee.
• Docket Number: P,No. 84-1802,HERNANDEZ-AGOST,ROMERO-BARCEL,G
• Decision Date: 23 October 1984

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748 F.2d 1 Miguel HERNANDEZ-AGOSTO, President of the Senate of Puerto
Rico on his Behalf and as Representative of the
Senate of Puerto Rico and of the
Judicial Commission of the
Senate, Plaintiff, Appellant,
v.
Carlos ROMERO-BARCELO, Governor of the Commonwealth of
Puerto Rico, Defendant, Appellee. No. 84-1802. United States Courts of Appeals
First Circuit. Argued Oct. 11, 1984.
Decided Oct. 23, 1984.

Marcos A. Ramirez Lavandero, Hato Rey, P.R., with whom Marcos A. Ramirez and Ramirez & Ramirez, Hato Rey, P.R., was on brief, for plaintiff, appellant.

Philip A. Lacovara, Washington, D.C., with whom Geoffrey F. Aronow, Roger P. Fendrich, William H. Voth, Hughes, Hubbard & Reed, Washington, D.C., and Amancio Arias Cerstero, Santurce, P.R., were on brief, for defendant, appellee.

Before CAMPBELL, Chief Judge, and COFFIN and BREYER, Circuit Judges.

PER CURIAM.

The Senate of Puerto Rico asks us to issue a writ of mandamus requiring the federal district court to return to the Commonwealth courts the Senate's "subpoena enforcement action" against the Commonwealth's

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Governor. The Senate issued the subpoena in question in April 1984, in connection with its investigation of events at Cerro Maravilla. In May, the Governor told the Senate he would not comply. In August, the Senate (through its President) asked the Commonwealth's Superior Court to issue an order (under the legal authority of Puerto Rico Political Code, Sec. 34-A, 2 L.P.R.A. Sec. 154a) requiring the Governor to comply with the subpoena. The Commonwealth court issued the order. The Governor removed the case to the United States District Court for the District of Puerto Rico. See 28 U.S.C. Sec. 1441. That federal court refused the Senate's request for remand. 594 F.Supp. 1390. See 28 U.S.C. Sec. 1447(c). The federal court stayed the Commonwealth court's compliance order pending further federal proceedings. The Senate now appeals and in the alternative asks for a writ of mandamus requiring a remand. Treating the appeal as a request for a writ, and for the reasons given below, we grant the writ of mandamus that the Senate seeks. I

The Governor sought to remove this case to federal court under the authority of 28 U.S.C. Sec. 1441. That provision allows removal of a case presenting "a claim or right arising under the Constitution, treaties or laws of the United States ...." The Supreme Court of the United States has made clear that, in deciding (for removal purposes) whether a case presents a federal "claim or right," a court is to ask whether the plaintiff's claim to relief rests upon a federal right, and the court is to look only to plaintiff's complaint to find the answer. Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936) ("right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action"); Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, ----, 103 S.Ct. 2841, 2847, 77 L.Ed.2d 420 (1983) ("defendant may not remove a case to federal court unless the plaintiff's complaint established that the case 'arises under' federal law"); Taylor v. Anderson, 234 U.S. 74, 75-76, 34 S.Ct. 724, 724, 58 L.Ed. 1218 (1914) ("whether a case is one arising under [federal] ... law ... must be determined from what necessarily appears in the plaintiff's statement of his own claim in the bill or declaration"); Charles D. Bonanno Linen Service, Inc. v. McCarthy, 708 F.2d 1, 3 (1st Cir.) (case law requires that the "elements of the federal claim appear on the face of the state court complaint, without reference to other documents"), cert. denied, --- U.S. ----, 104 S.Ct. 346, 78 L.Ed.2d 312 (1983). In this instance, the Senate's state court "complaint" (a petition for enforcement) makes no reference to federal law; it bases its right to enforcement of the subpoena entirely upon the law of the Commonwealth of Puerto Rico, namely, Political Code Sec. 34-A. Thus, under Franchise Tax Board, Gully, Bonanno, and a host of other cases, Sec. 1441 does not authorize removal of the case to federal court. (See Appendix for text of the Complaint.)

The Governor makes a two-step argument in an effort to escape the authority of these cases. First, he claims that the Senate's court action involves a federal issue, namely, whether enforcement of the subpoena would violate a federal requirement that Puerto Rico's Constitution provide "a republican form of government." 48 U.S.C. Sec. 731c. He recognizes, however, that this claim is insufficient, for the simple involvement of a federal issue in a case does not authorize removal if that involvement arises by way of a federal defense. Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. at ----, 103 S.Ct. at 2847. Justice Cardozo pointed out in Gully, not only that the federal controversy "must be disclosed on the face of the complaint, unaided by the answer or petition for removal" but also that not even "the complaint itself" provides a basis for jurisdiction "in so far as it goes beyond a statement of the plaintiff's cause of action and anticipates or replies to a probable defense." 299 U.S. at 113, 57 S.Ct. at 98

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(emphasis added). And the Supreme Court recently reiterated that "a federal court does not have original jurisdiction over a case in which the complaint presents a state-law cause of action, but also asserts ... that a federal defense the defendant may raise is not sufficient to defeat the claim." Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. at ----, 103 S.Ct. at 2846-47 (emphasis added). See Taylor v. Anderson, supra (federal claim must be determined from complaint "unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose"). Thus, the Governor adds a second step to his argument. He says that the federal argument is so important that it (or its denial) is an inextricable part of the plaintiff's affirmative case. Although the district court accepted this argument, we do not find it convincing for several reasons.

In the first place, a natural reading of the pleadings in this case suggests that the "republican form of government" argument is at best a defense. The plaintiff seeks a Commonwealth court 'subpoena enforcement' order, the right to which (it says) is granted by Commonwealth law. The defendant argues that if Commonwealth law provides such a right, it unconstitutionally conflicts with a federal statute. The defendant adds that the Senate bears the burden of disproving this federal contention. But burdens of proof are beside the point, for the simple fact is that the federal issue would not appear in the case unless defendant chose to assert it. That fact, in this context, militates strongly in favor of calling the issue a 'defense' regardless of who bears whatever proof burdens may be relevant. (Compare the insanity defense, which a court considers only if defendant raises the matter, but which, once raised, the prosecutor has the burden of disproving. Davis v. United States, 160 U.S. 469, 486-88, 16 S.Ct. 353, 357-58, 40 L.Ed. 499 (1895).)

In the second place, to view this defense as part of the plaintiff's claim runs counter to Supreme Court authority. We know that there are unusual cases in which a federal court will look beyond the literal words of a plaintiff's complaint, preventing him from defeating "removal by omitting to plead necessary federal questions." See Avco Corp. v. Aero Lodge No. 735, 376 F.2d 337, 339-40 (6th Cir.1967), aff'd, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968); Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. at ----, 103 S.Ct. at 2852. But these cases have focused on such matters as state labor law claims--brought in an area that federal labor law totally occupied. Thus, the Supreme Court has written that

... if a federal cause of action completely preempts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily 'arises under' federal law.

Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. at ----, 103 S.Ct. at 2854. Yet, while writing these very words about labor law cases, the Supreme Court held that a state law tax-related claim to money held by a federally regulated pension fund could not be removed, even though the complaint itself revealed that the sole issue in the case was whether federal pension law preempted the state law on which the plaintiff rested its claim. The Supreme Court held that the plaintiff (a California state tax board) asserted a claim under state law. While plaintiff's complaint raised the federal issue, it did...