State of Ohio v. Charles E. Wright, Ohio State Highway Patrol Trooper

992 F.2d 616, 1993 U.S. App. LEXIS 9934, 1993 WL 133987

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 30, 1993
• Docket: 91-3615
• Status: Published

Opinions

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 nonjuris-dictional 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

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 the merits. The dissent’s reliance on Her-mansdoifer is thus misplaced. In Hermans-dorfer 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 delay the administration of justice in the case in the state courts for more than five years.

Our decision here is reinforced by Baldridge v. Kentucky-Ohio Transportation, Inc., 983 F.2d 1341 (6th Cir.1993). There, after a comprehensive survey of removal cases on appealability, we held that an appellate court may not review a district court remand order in a case in which the defendant removed a state case claiming a complete federal preemption defense. Obviously, in such federal preemption removal eases, as in federal officer removal cases like this one, the district court must necessarily examine the nature and plausibility of the federal defense. Judge Guy, writing for the Court, pointed out that “the so-called ‘collateral issue’ was not collateral at all” because “the preemption inquiry here ... necessarily ‘related to the question of [removal] jurisdiction.’ ” Id. at 1348. The opinion concluded that an appellate court should not “invoke” a doctrine — whether labeled “decision on the merits,” “collateral issue” or “substantive decision” — which erects appellate jurisdiction on the ground that the district court had to examine and discuss the federal defense before remanding the case for lack of removal jurisdiction. The court stated that to conclude otherwise would undermine the basic congressional policy of “preventing delay in the trial of remanded cases by protracted litigation of jurisdictional issues.” Id. at 1350. Likewise here the question of removal jurisdiction was the heart of the decision in the district court, and the district court had to examine the plausibility of the federal defense in making its ruling to remand for lack of removal jurisdiction.

We follow the court’s opinion in Baldridge also in pointing out that doctrines of res judicata and “law of the case” do not prevent the defendant from raising the merits of his federal defense in the state court. The district court’s decision here, as in Baldridge, was not a decision “on the merits.” Whether the district court was right in assessing the plausibility of the federal defense is not before us, and our opinion should not be read as having ruled on that issue. As we said earlier, our ruling is based on the overriding federalism interest expressed by Congress when it enacted § 1447(d).

Neither should we set aside this clear congressional policy on reviewability because we believe that the state officer is being subjected to an unfair state contempt proceeding, as our dissenting colleagues maintain. The congressional policy does not authorize such result-oriented decisions on re-viewability under § 1447(d). Principles of federalism presume that the appellate courts of Ohio are perfectly capable and willing to correct any errors which may occur in the trial of the state court contempt proceeding.

Accordingly, this court lacks jurisdiction of this case and the appeal is therefore dismissed pursuant to 28 U.S.C. § 1447(d).

1 . This section provides:

(a) A civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:

(1) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.

2 . As Justice (now Chief Justice) Rehnquist explained in his dissenting opinion in Hermansdorfer:

As the Court recognizes, the limitation found in § 1447(d) has remained substantially unchanged since its enactment in 1887, and this Court has consistently ruled that the provision prohibits any form of review of remand orders.

Congress' purpose in barring review of all remand orders has always been very clear — to prevent the additional delay which a removing party may achieve by seeking appellate reconsideration of an order of remand. The removal jurisdiction extended by Congress works a significant interference in the conduct of litigation commenced in state court. While Congress felt that making available a federal forum in appropriate instances justifies some such interruption and delay, it obviously thought it equally important that when removal to a federal court is not warranted the case should be returned to the state court as expeditiously as possible. If this balanced concern is disregarded, federal removal provisions may become a device affording litigants a means of substantially delaying justice.

423 U.S. at 354-55, 96 S.Ct. at 594-95.

3 . See footnote 2 supra.