State of Ohio v. Wright, No. 91-3615

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtMERRITT; BOYCE F. MARTIN, Jr.; NATHANIEL R. JONES; DAVID A. NELSON; KENNEDY; RALPH B. GUY, Jr.
Citation992 F.2d 616
PartiesSTATE OF OHIO, Plaintiff-Appellee, v. Charles E. WRIGHT, Ohio State Highway Patrol Trooper, Defendant-Appellant. . Re
Decision Date30 April 1993
Docket NumberNo. 91-3615

Page 616

992 F.2d 616
61 USLW 2680
STATE OF OHIO, Plaintiff-Appellee,
v.
Charles E. WRIGHT, Ohio State Highway Patrol Trooper,
Defendant-Appellant.
No. 91-3615.
United States Court of Appeals,
Sixth Circuit.
Reargued Dec. 9, 1992.
Decided April 30, 1993.

David C. Greer (argued and briefed), Bieser, Greer & Landis, Dayton, OH, for plaintiff-appellee.

Jeffery W. Clark, Office of the Attorney General of Ohio, Deborah P. O'Neill (argued and briefed), Columbus, OH for defendant-appellant.

Sean Connelly (argued and briefed), U.S. Dept. of Justice, Washington, DC, amicus curiae U.S.

David C. Greer, Bieser, Greer & Landis, Dayton, OH, amicus curiae Kessler.

Page 617

Before MERRITT, Chief Judge; and KEITH, KENNEDY, MARTIN, JONES, MILBURN, GUY, NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, and BATCHELDER, Circuit Judges.

MERRITT, Chief Judge.

This appeal originated as an action in state court for contempt of court against the defendant, a police officer. The state court ordered him to return to the court $12,000 in confiscated drug money. He did not comply because the federal drug officers with whom he had deposited the funds refused to return it to him. He removed the case to federal court under 28 U.S.C. § 1442(a)(1) on the ground that his contempt citation arose out of his duties as an "officer of the United States ... or person acting under him." 1 The initial question before us is whether the police officer may appeal the order of the District Court remanding the case to the state court. The District Court appears to have remanded under § 1447(c) of the removal statute because the Court believed itself to "lack subject matter jurisdiction."

I.

Section 1447(d) of the removal statute in plain language prohibits appeals from such remand orders:

An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1443 [civil rights cases] of this title shall be reviewable by appeal or otherwise.

No exception to this rule of nonreviewability is applicable to this case. The District Court concluded that the case was removed improvidently and without federal jurisdiction. The Court did not dispose of the case on nonjurisdictional grounds, as in Regis Associates v. Rank Hotels Management, Ltd., 894 F.2d 193 (6th Cir.1990). The Court found no plausible federal issue or defense and thus remanded the case to the state court for lack of jurisdiction. Therefore the narrow exception to nonreviewability found in Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), is inapplicable. In Hermansdorfer, the Supreme Court allowed review of the district court's remand order because "respondent did not purport to proceed on the basis that [the] case had been removed 'improvidently and without jurisdiction.' Neither the propriety of the removal nor the jurisdiction of the court was questioned by respondent in the slightest." Id. at 343-44, 96 S.Ct. at 589.

This rule of nonreviewability of remand orders, first enacted over one hundred years ago, is important to our system of federalism. Parties to state litigation should not be delayed by procedural fencing over the intricacies and perplexities of removal jurisdiction, and state courts should not be long interrupted in the conduct of their litigation by removal petitions. It makes no difference that the District Court may be wrong in its conclusions concerning jurisdiction or the plausibility of the federal defense asserted. The federalism principle overrides this concern. 2

Page 618

II.

The view of our dissenting colleagues is as follows: The action of the District Court is appealable because, by rejecting the proffered "federal defense" of the defendant state police officer, the court below heard the case "on the merits," decided a "collateral issue" other than jurisdiction and made a "substantive decision." The dissent fails to make a distinction between an adjudication of the question of removal jurisdiction which depends on an examination of the federal defense and a final adjudication of the validity of the federal defense on the merits. It confuses the two. An examination of the two opinions of the District Court shows that the dissent's characterization of the lower court's decision as a decision on the merits is in error. On January 4, 1991, the District Court entered an order stating:

In the present case, the Defendant has not identified a federal defense or immunity which would support the present removal. Therefore, the Court hereby directs the Defendant to file, within thirty days of the filing of this entry, a memorandum demonstrating upon what federal defense he relies. The Court will thereafter resolve ... issues regarding its jurisdiction.

(App. 214.)

The District Court held a hearing on March 30, 1991, after the state police officer had filed the requested memorandum claiming a colorable federal defense. On May 31, 1991, the Court entered a second and final order as promised, resolving the question of jurisdiction. In its second order the Court states that it must decide "the question of whether this case was properly removed." (App. 227.) At no point in its order does the Court suggest that it is ruling on the merits of the case or is making a "substantive decision" binding on the officer. It concludes its second order:

Based upon the foregoing, the Court hereby dismisses Defendant's petition of removal (Doc. # 1). This case is hereby remanded to the Miami County Municipal Court.

(App. 233.) Immediately before this conclusion the Court gives its reasoning in the following two paragraphs:

Simply stated, there is simply no evidence before the Court that the Defendant is an "officer, agent, or other person authorized by law to make seizures ... for violation of the customs laws." Moreover, Defendant presents neither argument nor evidence that the seizure of $12,000 in United States currency from an automobile traveling in Miami County, Ohio, was merchandise or baggage seized for violation of the customs laws. Therefore, this Court concludes that Defendant has failed to demonstrate that he has a federal defense to the contempt proceedings.

To the extent that Defendant is arguing that 21 U.S.C. § 881(d), by incorporating provisions relating to the seizure of property for the violation of customs laws into the forfeiture provision for property seized in violation of drug laws, provides a federal defense, this Court disagrees. Section 881(d) imposes duties upon "officers, agents, or other persons as may be authorized or designated for that purpose by the Attorney General." Defendant has provided no evidence that he is within this class of persons. Simply stated, this Court is unwilling to interpret § 881(d) to federalize state and local law enforcement officers.

(App. 233.)

The Court rests its decision firmly on the ground that there is no "evidence" or showing giving rise to a federal defense, and hence no removal jurisdiction. Whether one agrees or disagrees with this reasoning, it is clear that the Court held that the state police officer has failed in the removed case "to demonstrate that he has a federal defense to the contempt proceedings." Thus the District Court held that there is no colorable claim of a valid federal defense, and it remanded the case to the state court for lack of removal jurisdiction. It did not adjudicate

Page 619

the merits. The dissent's reliance on Hermansdorfer is thus misplaced. In Hermansdorfer the district court had "remanded a case on grounds not specified in the statute and not touching the propriety of the removal." 423 U.S. at 352, 96 S.Ct. at 593.

A federal defense is a necessary element in every § 1442(a)(1) "federal officer" removal under Mesa v. California, 489 U.S. 121, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989), because officers must claim "authority" for their conduct under an "Act of Congress." The rule suggested by our dissenting colleagues seems to mean that all federal officer removals under § 1442(a)(1) are appealable despite the plain language of § 1447(d) because district courts in all such cases must necessarily examine the claimed federal defense to determine their jurisdiction. The dissenting view would seem to render meaningless in all § 1442(a)(1) cases the rule of nonreviewability of orders of remand in removal cases. If the district court must examine and discuss the federal defense in all such cases and if such an examination ipso facto makes the remand order appealable, nothing is left of the statutory language in § 1447(d): "An order remanding a case to the state court from which it was removed is not reviewable on appeal or otherwise." The dissenting position turns this language on its head. According to their view the statute now reads, "All orders remanding § 1442(a)(1) cases to the state court from which they were removed are reviewable on appeal." Such an interpretation is not only contrary to the plain language of § 1447(d), it is contrary to the congressional purpose--"to prevent the additional delay which a removing party may achieve by seeking appellate reconsideration of an order of remand" and to prevent federal removal from becoming "a device affording litigants a means of substantially delaying justice." 3 The words of a statute can be read to mean many things, but they should not be read to mean the exact opposite of what the statute clearly says and what the congressional policy clearly intended.

This case well illustrates the reasoning underlying the "no appeal" rule in removal cases. The court below entered its final order on May 28, 1991, almost two years ago, and the case has been pending on appeal since that time, effectively delaying a contempt proceeding in the state courts of Ohio. The removal petition was filed on February 26, 1988. The result of the removal has been to...

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16 practice notes
  • Zuniga v. Blue Cross and Blue Shield of Michigan, Nos. 93-1536
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 2 Mayo 1995
    ...court will review a district court's decision to remand a case unless the case was removed pursuant to section 1443." Ohio v. Wright, 992 F.2d 616, 620 (6th Cir.1993) (en banc ) (Martin, J., concurring). We share Justice Stevens' sentiments that "[o]ur work would certainly be much easier if......
  • In re Nat. Century Fin. Enterpr., Inc., Inv. Lit., No. 2:03md-1565.
    • United States
    • U.S. District Court — Southern District of Ohio
    • 10 Junio 2004
    ...the law, and protect rights. See Allee v. Medrano, 416 U.S. 802, 835, 94 S.Ct. 2191, 2210, 40 L.Ed.2d 566 (1974); State of Ohio v. Wright, 992 F.2d 616, 620 (6th Cir.1993); Barichello v. McDonald, 98 F.3d 948, 954-55 (7th Cir.1996). But when a party legitimately contests the state court's a......
  • Madewell v. Downs, No. 94-2612
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 29 Agosto 1995
    ...impose a duty to report and to turn over property seized in violation of the customs laws of the United States. State of Ohio v. Wright, 992 F.2d 616, 623 & n. 3 (6th Cir.1993). Section 1602 provides [i]t shall be the duty of any officer, agent, or other person authorized by law to make sei......
  • Little v. Purdue Pharma, L.P., Case No. C-3-01-344.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • 20 Septiembre 2002
    ...on the claims. See In re Rezulin Products Liability Litigation, 133 F.Supp.2d 272, 280, n. 4 (S.D.N.Y.2001). 10. Cf. Ohio v. Wright, 992 F.2d 616, 625, n. 1 (6th Cir.1993)(Nelson, J., concurring)(discussing the difference between "colorable" and "valid" with respect to a federal defense ser......
  • Request a trial to view additional results
16 cases
  • Zuniga v. Blue Cross and Blue Shield of Michigan, Nos. 93-1536
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 2 Mayo 1995
    ...court will review a district court's decision to remand a case unless the case was removed pursuant to section 1443." Ohio v. Wright, 992 F.2d 616, 620 (6th Cir.1993) (en banc ) (Martin, J., concurring). We share Justice Stevens' sentiments that "[o]ur work would certainly be much easier if......
  • In re Nat. Century Fin. Enterpr., Inc., Inv. Lit., No. 2:03md-1565.
    • United States
    • U.S. District Court — Southern District of Ohio
    • 10 Junio 2004
    ...the law, and protect rights. See Allee v. Medrano, 416 U.S. 802, 835, 94 S.Ct. 2191, 2210, 40 L.Ed.2d 566 (1974); State of Ohio v. Wright, 992 F.2d 616, 620 (6th Cir.1993); Barichello v. McDonald, 98 F.3d 948, 954-55 (7th Cir.1996). But when a party legitimately contests the state court's a......
  • Madewell v. Downs, No. 94-2612
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 29 Agosto 1995
    ...impose a duty to report and to turn over property seized in violation of the customs laws of the United States. State of Ohio v. Wright, 992 F.2d 616, 623 & n. 3 (6th Cir.1993). Section 1602 provides [i]t shall be the duty of any officer, agent, or other person authorized by law to make sei......
  • Little v. Purdue Pharma, L.P., Case No. C-3-01-344.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • 20 Septiembre 2002
    ...on the claims. See In re Rezulin Products Liability Litigation, 133 F.Supp.2d 272, 280, n. 4 (S.D.N.Y.2001). 10. Cf. Ohio v. Wright, 992 F.2d 616, 625, n. 1 (6th Cir.1993)(Nelson, J., concurring)(discussing the difference between "colorable" and "valid" with respect to a federal defense ser......
  • Request a trial to view additional results

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