Guinasso v. Pacific First Federal Savings & Loan Ass'n

656 F.2d 1364, 1981 U.S. App. LEXIS 17572
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 21, 1981
DocketNo. 80-3099
StatusPublished
Cited by36 cases

This text of 656 F.2d 1364 (Guinasso v. Pacific First Federal Savings & Loan Ass'n) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Guinasso v. Pacific First Federal Savings & Loan Ass'n, 656 F.2d 1364, 1981 U.S. App. LEXIS 17572 (9th Cir. 1981).

Opinion

WRIGHT, Circuit Judge:

INTRODUCTION

The Guinassos assumed a home loan financed by Pacific First Federal Savings and Loan Association.1 Pursuant to a regulation promulgated by the Federal Home Loan Bank Board, 12 C.F.R. § 545.6-11 (1975), Pacific created escrow accounts with funds collected from mortgagors for taxes and insurance. When the Guinassos’ deed of trust was executed, the regulation did not state whether associations were required to pay interest on such accounts.2 Pacific paid none.

This suit is a class action by the Guinassos for themselves and others similarly situated to recover interest on the funds held in escrow. The complaint was for breach of contract, violation of duties as a trustee, and unjust enrichment. It was filed in state court and phrased wholly in terms of state law. It presented a recognized cause of action under the common law of Oregon. See Derenco, Inc. v. Benjamin Franklin Federal Savings & Loan Ass’n, 281 Or. 533, 577 P.2d 477, 491, cert. denied, 439 U.S. 1051, 99 S.Ct. 733, 58 L.Ed.2d 712 (1978).

Pacific removed the action to federal district court, arguing that federal law preempted the Oregon claim. The district court held that it had jurisdiction under 28 U.S.C. § 1337,3 and it agreed that the state claim was preempted. After denying the plaintiffs’ motion to remand, it certified the case for interlocutory appeal under 28 U.S.C. § 1292(b). We granted leave to appeal.

REMOVAL JURISDICTION

A suit can be removed to federal court under 28 U.S.C. § 1441(a) only if it could have been brought there originally. Snow v. Ford Motor Co., 561 F.2d 787, 789 (9th Cir. 1977). This suit could have been brought in federal court if it arose under federal law, or under an act of Congress regulating commerce. See note 3 supra.

A suit arises under federal law within 28 U.S.C. § 1331 if the complaint, properly pléaded, presents a substantial dispute [1366]*1366over the effect of federal law, and the result turns on the federal question. See Spokane County Legal Services, Inc. v. Legal Services Corp., 614 F.2d 662, 667 (9th Cir. 1980); Standage Ventures, Inc. v. Arizona, 499 F.2d 248, 249 (9th Cir. 1974).

Similarly, a suit arises under an act of Congress regulating commerce within 28 U.S.C. § 1337 if it seeks relief granted or implied by the act or “hinges on” the act’s interpretation. Garrett v. Time-D.C., Inc., 502 F.2d 627, 629 (9th Cir. 1974), cert. denied, 421 U.S. 913, 95 S.Ct. 1569, 43 L.Ed.2d 778 (1975).

A substantial proposition of federal law must form “a direct and essential element of the plaintiff’s cause of action.” Smith v. Grimm, 534 F.2d 1346, 1350 (9th Cir.), cert. denied, 429 U.S. 980, 97 S.Ct. 493, 50 L.Ed.2d 589 (1976).4 Jurisdiction may not rest on propositions that merely anticipate a federal defense. United Air Lines v. Division of Industrial Safety, 633 F.2d 814, 816 (9th Cir. 1980).

Federal preemption is ordinarily a matter to be raised in defense. See Gully v. First Nat’l Bank, 299 U.S. 109, 116, 57 S.Ct. 96, 99, 81 L.Ed. 70 (1936). Taken alone, it is not a basis for removal. Washington v. American League of Professional Baseball Clubs, 460 F.2d 654, 660 (9th Cir. 1972).

These principles indicate that the district court lacked jurisdiction.

Pacific maintains that jurisdiction is proper under Meyers v. Beverly Hills Federal Savings & Loan Ass’n, 499 F.2d 1145 (9th Cir. 1974). In Meyers, the plaintiffs sought to have declared invalid under California law prepayment penalties that were imposed by federal savings and loan associations. Id. at 1145 — 46. The suit was brought in state court and removed to federal court. Id. Affirming the district court, we held that Congress had preempted state regulation of prepayment penalties imposed by federal associations. Id. at 1147.

We described the case’s procedural history but did not comment on the propriety of removal. See id. at 1146-47. Pacific contends that Meyers implicitly authorizes removal of all preempted claims against federal savings and loan associations. Because the jurisdictional issue was not explicitly decided and the First Circuit has reached a contrary result, we are not bound by such an implication.5

Pacific relies also on Johnson v. England, 356 F.2d 44 (9th Cir.), cert. denied, 384 U.S. 961, 86 S.Ct. 1587, 16 L.Ed.2d 673 (1966). The complaint in Johnson invoked state law in a labor dispute. Id. at 45. We found removal proper because § 301 of the Labor Management Relations Act “operated to preempt this field of law.” Id. at 48. “[A] fair construction of the complaint . . . must be that it is necessarily one pursuant to § 301(a)....” Id.

Pacific’s reliance on Johnson is misplaced. Johnson merely applied Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957), in which the Supreme Court held that federal common law developed by the federal courts governs the entire subject matter of § 301(a). Id. at 456, 77 S.Ct. at 917.

“[T]his interpretation ... obviates any jurisdictional problem, since federal law then provides both the right and the remedy, and the case is one of true federal [1367]*1367question jurisdiction.” Johnson v. England, 356 F.2d at 48 n.3 (quoting C. Wright,

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656 F.2d 1364, 1981 U.S. App. LEXIS 17572, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guinasso-v-pacific-first-federal-savings-loan-assn-ca9-1981.