Pidgeon v. Parker

• Decision Date: 28 August 2014
• Docket Number: Civil Action No. H–13–3768.
• Citation: 46 F.Supp.3d 692
• Parties: Jack PIDGEON and Larry Hicks, Plaintiffs, v. Mayor Annise PARKER and City of Houston, Defendants.
• Court: U.S. District Court — Southern District of Texas

46 F.Supp.3d 692

Jack PIDGEON and Larry Hicks, Plaintiffs

v.Mayor Annise PARKER and City of Houston, Defendants.

Civil Action No. H–13–3768.

United States District Court, S.D. Texas, Houston Division.

Signed Aug. 28, 2014.

Jared R. Woodfill, Woodfill Law Firm PC, Houston, TX, Leif A. Olson, The Olson Firm, PLLC, Humble, TX, for Plaintiffs.

David M. Feldman, City Attorney's Office, Houston, TX, for Defendants.

MEMORANDUM AND ORDER

LEE H. ROSENTHAL, District Judge.

In November 2013, Annise Parker, the Mayor of the City of Houston, directed the City's Human Resources Department to make the City's employment-benefits program available to same-sex spouses of City of Houston employees. The plaintiffs, Jack Pidgeon and Larry Hicks, who identify themselves as Houston residents and taxpayers, opposed this decision. On December 17, 2013, Pidgeon and Hicks sued Parker and the City of Houston in the Harris County, Texas family law court, seeking temporary and permanent injunctions preventing the defendants from providing such benefits. The family law court judge promptly issued a TRO. Shortly before it expired, the defendants removed to federal court, asserting federal-question jurisdiction.¹ (Docket Entry No. 1, amended as Docket Entry No. 22). The plaintiffs moved to remand. (Docket Entry No. 11).

The motion to remand does not turn on the substantive issue of whether the United States Constitution requires state law to recognize same-sex marriages and grant related benefits. The issue is instead straight out of a law school federal courts class. The issue is whether this court has federal subject-matter jurisdiction necessary to decide the substantive issue. The complaint filed in state court does not raise a claim under, or refer to, federal law. Instead, the complaint alleges that Mayor Parker's directive and its implementation violate Section 6.204 of the Texas Family Code ; Article II, Section 22 of the Houston City Charter; and Article 1, Section 32 of the Texas Constitution. The defendants argue that removal is proper under 28 U.S.C. § 1441(a) because Section 22 of the Houston City Charter refers to federal law, and because the plaintiffs' claims necessarily raise a substantial federal question. The plaintiffs deny that the federal law reference in the City Charter is sufficient to establish jurisdiction or that the complaint otherwise necessarily raises federal issues. The plaintiffs nonetheless moved to amend their complaint to delete the claim based on the Houston City Charter. (Docket Entry No. 27). The defendants opposed this motion. (Docket Entry No. 32). This court held a hearing on the motions and heard argument.²

Since the motions were filed, many courts, including in Texas, have ruled on the underlying substantive issues.³ Many speculate that the United States Supreme Court will ultimately resolve them. But the remand motion does not turn on those developments and will not affect them. Indeed, the underlying substantive issues are raised in another case in which the plaintiffs challenge the constitutionality of the City of Houston's withdrawal of employment benefits to same-sex spouses after a Texas family court enjoined the City from providing such benefits. Freeman v. Parker, (Case No. 4:13–cv–03755), was filed in the federal court and is currently pending before another judge in the Southern District of Texas, Houston Division. The substantive issues are likely to be decided, in a federal forum, regardless of this remand.

Long-standing principles of federal jurisdiction drive the analysis and result. Based on the amended notice of removal; the state-court petition; the motion to remand, response, reply, and sur-reply; the governing law; and the arguments of counsel, the court concludes that it does not have jurisdiction over this case. The motion to remand is therefore granted.

The plaintiffs also sought their attorneys' fees and costs, asserting that removal was wrongful. This motion is denied, because there were clearly colorable grounds to remove. The remaining pending motions, seeking to amend the complaint, to file an amicus brief, to intervene, and to consolidate, are denied as moot.

The reasons for these rulings are explained below.

I. Background

The City of Houston's Charter states in Article II, Section 22 that “[e]xcept as required by State or Federal law, the City of Houston shall not provide employment benefits, including health care, to persons other than employees, their legal spouses and dependent children.” Texas does not recognize same-sex marriage. The Texas Defense of Marriage Act, contained in Section 6.204(c) of the Texas Family Code, prohibits political subdivisions in Texas from giving effect to a “right or claim to any legal protection, benefit or responsibility asserted as a result of a marriage between persons of the same sex or a civil union in this state or any jurisdiction.” Before November 2013, the defendants interpreted the Houston City Charter and the Texas Family Code as requiring them to deny benefits to same-sex spouses of City of Houston employees who were legally married in states where same-sex marriage was recognized.

In United States v. Windsor, 570 U.S. ––––, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), the Supreme Court examined the constitutionality of the federal Defense of Marriage Act, which defined marriage for federal-law purposes as limited to unions between a man and a woman and denied same-sex couples, including those legally married in a state in which same-sex marriage was recognized, the federal benefits and protections granted to heterosexual married couples. The Supreme Court held that Section 3 of the federal Defense of Marriage Act violated the Fifth Amendment. Windsor, 133 S.Ct. at 2695. The Court recognized that the federal DOMA “depart[ed] from [a] history and tradition of reliance on state law to define marriage.” Windsor, 133 S.Ct. at 2692.

Parker asked the City Attorney for legal advice on whether Windsor required the City to extend benefits to same-sex spouses of City employees married in states recognizing such unions. On November 19, 2013, the City Attorney issued a legal opinion finding “the continued application of Article II, Section 22 of the Houston City Charter to deny benefits to legally married same-sex spouses to be unconstitutional, primarily because it denies the employees of such spouses equal protection of the laws.” (Docket Entry No. 1, Exhibit F). Parker directed the City's Human Resources Department to begin enrolling the same-sex spouses of City of Houston employees in the City's employment-benefits program.

The plaintiffs sued, alleging that Parker's directive and its implementation violate Section 6.204 of the Texas Family Code, Article II, Section 22 of the Houston City Charter, and Article 1, Section 32 of the Texas Constitution. Shortly after the family law court issued a TRO, the defendants timely removed to federal court. (Docket Entry No. 1). The plaintiffs moved to remand, arguing that their claims were based on state law, not on any federal statute or on the United States Constitution, and that this court lacked jurisdiction to do anything but return the case to the state court. (Docket Entry No. 11).

The defendants assert that this court has jurisdiction under 28 U.S.C. § 1331, which gives federal district courts “original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States.” The defendants argue that the “plaintiffs have [ ] invoked the federal question jurisdiction of this court by their pleading,” which alleges that the defendants violated a section of the Houston City Charter that refers to federal law, and which necessarily raises substantial federal questions of due process and equal protection under the United States Constitution. (Docket Entry No. 22 at 5; No. 26 at 13).

II. Analysis

A. The Legal Standard for Federal–Question Removal Jurisdiction

Federal court jurisdiction is limited by the Constitution and federal statutes. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (citing Willy v. Coastal Corp., 503 U.S. 131, 136–137, 112 S.Ct. 1076, 117 L.Ed.2d 280 (1992) ; Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) ; and American Fire & Casualty Co. v. Finn, 341 U.S. 6, 71 S.Ct. 534, 95 L.Ed. 702 (1951) ); Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 372, 98 S.Ct. 2396, 57 L.Ed.2d 274 (1978) (“the jurisdiction of the federal courts is limited not only by the provisions of Art. III of the Constitution, but also by Acts of Congress.”). These limits, based on respect both for other branches of government and for the state courts, must be respected. Without subject-matter jurisdiction, a federal court simply has no authority to decide the case. Because the removing party is the one invoking federal jurisdiction, it has the burden of proving that federal jurisdiction is present to defeat a motion to remand. Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir.2002) (citing Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir.1988), appeal after remand, 915 F.2d 965 (5th Cir.1990), aff'd, 503 U.S. 131, 112 S.Ct. 1076, 117 L.Ed.2d 280 (1992) ); Delgado v. Shell Oil Co., 231 F.3d 165, 178 n. 25 (5th Cir.2000) ; see also Coury v. Prot, 85 F.3d 244, 248 (5th Cir.1996) (“[T]here is a presumption against subject matter jurisdiction that must be rebutted by the party bringing an action to federal court.”).

To determine whether federal jurisdiction exists, the court looks to the record in the state court at the time of removal. St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289–90, 58 S.Ct. 586, 82 L.Ed. 845 (1938) ; Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir.1995). As a general matter, pleading amendments after removal can neither create federal jurisdiction that did not exist when the action was removed nor strip...