Price v. Johnson, 09-10389.

• Citation: 600 F.3d 460
• Decision Date: 11 March 2010
• Docket Number: No. 09-10389.,09-10389.
• Parties: John Wiley PRICE, Plaintiff-Appellee, v. Eddie Bernice JOHNSON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

600 F.3d 460

John Wiley PRICE, Plaintiff-Appellee, v. Eddie Bernice JOHNSON, Defendant-Appellant.

No. 09-10389.

United States Court of Appeals, Fifth Circuit.

March 11, 2010.

Mark D. Johnson, Law Offices of Mark D. Johnson, Garland, TX, for Price.

Kerry William Kircher, Washington, DC, for Johnson.

Before REAVLEY, DAVIS and STEWART, Circuit Judges.

REAVLEY, Circuit Judge:

This case arises out of a dispute between two Texas public officials. Pursuant to state procedural rules, Appellee John Wiley Price, a Dallas County Commissioner, sought an order in state court to take an investigatory deposition of Appellant Congresswoman Eddie Bernice Johnson. Rep. Johnson removed the matter to federal court under the federal officer removal statute, 28 U.S.C. ž 1442(a)(1), but the district court remanded it to state court because Price's petition was not a "civil action" subject to removal. Rep. Johnson appeals the district court's order. We lack jurisdiction to review the district court's remand order, and we DISMISS the appeal.

I.

The genesis of the dispute between Commissioner Price and Rep. Johnson is an interview that the Congresswoman gave in December 2008 to the Dallas Observer in which she allegedly made statements questioning Commissioner Price's ethics and accusing him of "shaking down" parties involved in a land development. As a result of the interview, Commissioner Price filed in the 14th Judicial District Court of Dallas County, Texas a Verified Petition To Take Deposition Before Suit under Texas Rule of Civil Procedure 202.1.¹ The petition stated that Price did not know whether he intended to pursue a lawsuit against Rep. Johnson but sought to take the Congresswoman's deposition in order to investigate potential claims for defamation.

Rep. Johnson removed the petition to the United States District Court for the Northern District of Texas, citing as grounds for removal the federal officer removal statute, 28 U.S.C. ž 1442(a)(1). That statute permits inter alia removal to federal court when a "civil action" has been filed against an officer of the United States who was acting under color of her office.² Rep. Johnson asserted in her removal notice that she was the subject of a pre-suit discovery action under Texas Rule 202.1 that concerned actions taken by her under color of her office as a United States Representative and Member of the House.

Upon motion by Commissioner Price, the district court remanded the petition to state court. The district court reasoned that a Rule 202.1 proceeding in state court is not a removable "civil action" under ž 1442(a)(1) because it asserts no claim upon which relief can be granted and instead seeks an order for a deposition that may or may not result in the filing of an actual suit. Rep. Johnson challenges the district court's order on appeal. We first must examine our own appellate jurisdiction. See Bader v. Atl. Int'l, Ltd.³

II.

A remand order is generally barred from appellate review by 28 U.S.C. ž 1447(d), which provides that "an order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise ...." This bar to review applies even if the order might otherwise be deemed erroneous. Smith v. Tex. Children's Hosp.⁴ The immunity from appellate review is narrowed, however, when ž 1447(d) is read in pari materia with 28 U.S.C. ž 1447(c), so that only remand orders based on grounds recognized in ž 1447(c) are unreviewable. Things Remembered, Inc. v. Petrarca.⁵ Those grounds are defects in the removal procedure or lack of subject matter jurisdiction.⁶ There is no contention in this case of a defect in the removal procedure. Therefore, if the district court's remand order was based on a lack of jurisdiction, we may not review the order in this appeal.

In order to exercise our appellate jurisdiction, we require that the district court's order clearly show the remand was not based on ž 1447(c): "We will only review remand orders if the district court affirmatively states a non-1447(c) ground for remand." Soley v. First Nat'l Bank of Commerce.⁷ As noted above, the district court remanded the petition because it did not satisfy ž 1442(a)(1)'s requirement of a "civil action." This was not a clear affirmative statement of a non-1447(c) ground, and it may not be reviewed.

We have previously held that the failure to satisfy ž 1442 deprives the federal court of subject matter jurisdiction. See Guadalupe-Blanco River Auth. v. City of Lytle.⁸ Therefore, fairly read, the district court's remand order based on the belief that the petition was not removable under ž 1442(a)(1) was based on a lack of subject matter jurisdiction.⁹ We find Guadalupe-Blanco to be instructive. In that case, two federal agency defendants removed to federal court a state suit to adjudicate water rights and moved to dismiss based on sovereign immunity.¹⁰ The version of ž 1442(a)(1) in effect at that time did not permit agencies to assert federal officer removalÔÇöonly federal officers could do so.¹¹ Because the defendants could not rely on ž 1442(a)(1) as the basis for jurisdiction, and there was no other basis for federal court jurisdiction in the case, we held that there was no subject matter jurisdiction and dismissed the appeal.¹²

The same rationale applies in this case. The district court concluded that Rep. Johnson could not rely on ž 1442(a)(1), although for a reason different from Guadalupe-Blanco, viz. the lack of a "civil action." There is no other basis apparent on the record for federal jurisdiction.¹³ Because ž 1442(a)(1) is a jurisdictional statute, the district court's finding that Rep. Johnson failed to satisfy the statute's requirements leads to the natural conclusion that the district court felt there was no subject matter jurisdiction, and the appeal must be dismissed.

Rep. Johnson argues that the Supreme Court in Caterpillar Inc. v. Lewis¹⁴ recognized a distinction between subject matter jurisdiction and the statutory requirements permitting removal to federal court. She therefore suggests that the "civil action" requirement for removal under ž 1442(a)(1) is merely a statutory element the failure of which does not implicate subject matter jurisdiction. Under this reasoning, the district court's remand would not be based on ž 1447(c) and could be reviewed. We find the argument and the citation to Caterpillar unpersuasive.

In Caterpillar, the Court had to decide whether the absence of complete diversity, as required by 28 U.S.C. ž 1441(a), at the time of removal was fatal to a federal court adjudication even though the defect had been cured by the dismissal of a non-diverse defendant before trial and was no longer present at the time the district court entered judgment.¹⁵ The Supreme Court held that the judgment could stand.¹⁶ In doing so, the Court noted that although the "jurisdictional defect" had been cured in the case by the time of judgment, the "statutory flaw" of failing to meet ž 1441(a)'s requirements at the time of removal "remained in the unerasable history of the case."¹⁷ But the Court did not disturb the judgment because the federal jurisdictional requirements had been met at the time judgment was entered. Rep. Johnson asserts that the quoted language necessarily means that not every aspect of a removal statute concerns subject matter jurisdiction. We acknowledge that the Court spoke of both a jurisdictional defect and a statutory violation in Caterpillar, but in that case the two were the same, i.e., the absence of complete diversity.¹⁸ The Court was merely explaining the question it had to address in the case due to the timing of the defect and its cure.¹⁹

Caterpillar did not directly address the question in this case of whether the remand for failure to satisfy the removal statute is unreviewable because it is based on a lack of jurisdiction. A later portion of the opinion is instructive, however. The respondent there asserted that if the judgment was allowed to stand, despite the initial statutory defect in the removal, the procedural rules for removal would in effect become unenforceable and defendants would be encouraged to remove cases prematurely.²⁰ The Caterpillar Court rejected the argument and noted that this was unlikely because a "well-advised" defendant would foresee the result of attempting to remove without meeting the requirements of the removal statute: "a swift and nonreviewable remand order."²¹ That is precisely the outcome warranted in the instant case.

Rep. Johnson also argues in her supplemental letter brief that because the Attorney General has determined under the Westfall Act that she was acting within the scope of her federal employment, she is immune from any claims against her under the Federal Tort Claims Act, and there is federal question jurisdiction here.²² "The Westfall Act provides that, upon certification by the Attorney General or his designated representative that the government employee was acting within the scope of his employment at the time of the allegedly tortious act, the United States may remove the action to federal court and substitute itself as the defendant in the suit." Counts v. Guevara.²³ The Attorney General's certification in this case is not properly before us at this time. Johnson sought removal based only on ž 1442(a)(1). She never asserted in the district court, either in her removal notice or post-remand order motions, that removal was warranted by Westfall Act certification.²⁴ Moreover, Rep. Johnson apparently obtained the Attorney General's certification only after the district court's remand order, and we generally will not enlarge the record to consider evidence that was not before the district court. McIntosh v. Partridge.²⁵ We therefore decline to consider this issue and express no opinion on it.

APPEAL DISMISSED.

1 The state rule provides:

A person may petition the court for an order authorizing the taking of a deposition on oral examination or...