Winn v. Wakat

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 29, 2026
• Docket: 25-5094
• Status: Unpublished

Opinion

Appellate Case: 25-5094 Document: 51-1 Date Filed: 04/29/2026 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT April 29, 2026 _________________________________ Christopher M. Wolpert Clerk of Court HENRY J. WINN; LINDA I. WINN,

Plaintiffs - Appellees,

v. No. 25-5094 (D.C. No. 4:25-CV-00206-JDR-JFJ) AUGUST WAKAT, (N.D. Okla.)

Defendant - Appellant,

and

POEBOY FLEMING AUTO SALVAGE, INC.; JOHN LEE WAKAT; JOHN DOE; JANE DOE; GLENN I. PATRICK; WAKAT FOUNDATION, INC.; LAMAR CENTRAL OUTDOOR, LLC; LINDMARK ACQUISITION, LLC; PLAINVIEW SALVAGE, INC.; WAGONER COUNTY TREASURER; WAGONER COUNTY BOARD OF COUNTY COMMISSIONERS,

Defendants.

–––––––––––––––––––––––––––––––––––

AUGUST WAKAT,

Plaintiff - Appellant,

POEBOY FLEMING AUTO SALVAGE, INC.,

Plaintiff, Appellate Case: 25-5094 Document: 51-1 Date Filed: 04/29/2026 Page: 2

v. No. 25-5095 (D.C. No. 4:25-CV-00201-JDR-SH) HENRY WINN, (N.D. Okla.)

Defendant - Appellee,

CITY OF TULSA; FAIR OAKS TOWNSHIP; JOE ROBSON; ANN LANDRITH TRUST; LAMAR ADVERTISING CO.,

Defendants. _________________________________

ORDER AND JUDGMENT * _________________________________

Before TYMKOVICH, BALDOCK, and MORITZ, Circuit Judges. _________________________________

In these consolidated appeals, August Wakat, proceeding pro se, 1 appeals from

the district court’s orders remanding a foreclosure action against him to Oklahoma

state court and his criminal cases to Texas state court. We affirm the appeals in part

and dismiss them in part.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Because Mr. Wakat represents himself, we construe his filings liberally. See 1

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). 2 Appellate Case: 25-5094 Document: 51-1 Date Filed: 04/29/2026 Page: 3

I. BACKGROUND

These cases stem from an Oklahoma real estate transaction in which

Mr. Wakat purchased a tract of land from Henry and Linda Winn. Mr. Wakat later

defaulted on the mortgage, and the Winns filed a foreclosure action against him in

the District Court of Wagoner County, Oklahoma. Mr. Wakat then removed the case

to federal district court. In a separate action, Mr. Wakat removed two criminal cases

against him from the District Court of Houston County, Texas to federal district court

and moved to join Mr. Winn as a party.

In both matters, Mr. Wakat asserted two statutory bases for

removal—28 U.S.C. § 1441(a) and 28 U.S.C. § 1442(a)(1). Section 1441(a)

authorizes removal of civil actions filed in state court over which the United States

district courts have original jurisdiction. Section 1442(a)(1) authorizes removal of

civil actions or criminal prosecutions filed in state court against the United States or

its agencies or officers “for or relating to 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.”

Mr. Wakat asserted removal was proper in both matters because he is “a Special

Agent of the U.S. Department of the Treasury.” R. at 7 (No. 25-5094); R. at 6

(No. 25-5095).

The district court remanded the Oklahoma foreclosure action to the state court

from which it was removed. The court first explained that removal under § 1441(a)

was improper because Mr. Wakat failed to assert diversity jurisdiction, and there was

3 Appellate Case: 25-5094 Document: 51-1 Date Filed: 04/29/2026 Page: 4

no federal-question jurisdiction because the foreclosure petition relied solely on state

law. The court next concluded that removal under § 1442(a)(1) was improper

because Mr. Wakat “failed to provide any facts to indicate that he is a representative

of the United States.” R. at 355 (No. 25-5094). The court further determined that

removal was procedurally improper because Mr. Wakat’s notice of removal did not

contain a statement of consent from the other defendants, as required under Chicago,

Rock Island & Pacific Railway Co. v. Martin, 178 U.S. 245, 248 (1900). Ultimately,

the district court found that removal of the case was “patently unreasonable” and

granted Mr. Winn’s request for costs and fees. R. at 357 (No. 25-5094).

In the other case, the district court determined that it lacked subject-matter

jurisdiction over Mr. Wakat’s Texas state criminal proceedings and therefore

remanded them to the state court from which they were removed. The court

explained that removal under § 1441(a) was improper because the statute is

inapplicable to criminal actions, and removal under § 1442(a)(1) was improper

because Mr. Wakat is not a representative of the United States. The court granted

Mr. Winn’s request for costs and fees, finding that “Mr. Wakat had no objectively

reasonable basis for removal of his Houston County criminal cases to [federal

district] [c]ourt or to add Mr. Winn as a party to the removal.” R. at 84

(No. 25-5095) (internal quotation marks omitted).

II. APPELLATE JURISDICTION

As a threshold matter, the Winns argue that we lack jurisdiction to review

these appeals. We disagree.

4 Appellate Case: 25-5094 Document: 51-1 Date Filed: 04/29/2026 Page: 5

“The authority of appellate courts to review district-court orders remanding

removed cases to state court is substantially limited by statute.” Powerex Corp. v.

Reliant Energy Servs., Inc., 551 U.S. 224, 229 (2007). One such statute is 28 U.S.C.

§ 1447(d), which generally serves as a jurisdictional bar to appellate review of

remand orders unless the removal was pursuant to either § 1442 or 28 U.S.C. § 1443,

which allows removal of civil actions and criminal prosecutions in circumstances not

alleged in these appeals. 2 And if the remand order was predicated on either of the

grounds specified in § 1447(c)—lack of subject-matter jurisdiction or a defect in the

removal procedure—it is insulated from appellate review. Miller v. Lambeth,

443 F.3d 757, 759 (10th Cir. 2006). Thus, we only have jurisdiction to review a

remand order “if (1) the remand was for a reason other than lack of subject matter

jurisdiction or a defect in the removal procedure,” or (2) the removal was pursuant to

either § 1442 or § 1443. Id.; § 1447(d).

“To remove a case ‘pursuant to’ § 1442 or § 1443 . . . just means that a

defendant’s notice of removal must assert the case is removable ‘in accordance with

or by reason of’ one of those provisions.” BP P.L.C. v. Mayor & City Council of

Balt., 593 U.S. 230, 238 (2021) (first quoting § 1447(d), then quoting Black’s Law

Dictionary (rev. 4th ed. 1968)). Therefore, if the notice of removal cites § 1442 or

2 Section 1447(d) does not contain the word “jurisdiction,” but the Supreme Court and this court have viewed § 1447(d) as a jurisdictional limitation. See, e.g., Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 636 (2009) (framing issue concerning § 1447(d)’s bar to appellate review as involving “jurisdiction”); City of Albuquerque v. Soto Enters., Inc., 864 F.3d 1089, 1092 (10th Cir. 2017) (same). 5 Appellate Case: 25-5094 Document: 51-1 Date Filed: 04/29/2026 Page: 6

§ 1443 as a ground for removal and the district court orders the case remanded to

state court, the district court’s remand order is reviewable on appeal. Id. This is true

even for a frivolous assertion of § 1442 or § 1443 as grounds for removal. See id.

at 246 (rejecting argument that frivolous addition of § 1442 or § 1443 to other

grounds for removal would “invite gamesmanship . . . with an eye to ensuring

appellate review down the line if the case is remanded”). BP P.L.C. is consistent

with the approach we have long taken to determine whether a case is removed

pursuant to § 1442 or § 1443. 3

Here, in his notice of removal for the foreclosure case, Mr. Wakat stated he

removed the case “pursuant to 28 U.S.C. §§ 1442(a)(1) and 1441(a).” R. at 7

(No. 25-5094). In his notice of removal for the Texas state criminal proceedings,

Mr. Wakat stated he removed the proceedings “under 28 U.S.C. §§ 1442(a)(1) and

1441(a).” R. at 6 (25-5095). We conclude that Mr. Wakat sufficiently asserted that

both the foreclosure case and the criminal proceedings were removable “in

accordance with or by reason of” § 1442. BP P.L.C., 593 U.S. at 238 (internal

quotation marks omitted). We therefore have jurisdiction under § 1447(d) to review

both remand orders. Id.

3 See, e.g., Colorado v. Lopez, 919 F.2d 131, 132 (10th Cir. 1990) (relying on § 1447(d) to exercise jurisdiction to review merits of district court order remanding criminal prosecution because defendant “filed a petition for removal pursuant to . . . § 1443”); First Union Mortg. Corp. v. Smith, 229 F.3d 992, 994 (10th Cir. 2000) (exercising jurisdiction where defendant had merely “cit[ed] [§ 1443(1)] as his basis for removal”); Lopez v. Cantex Health Care Ctrs. II, LLC, No. 23-2038, 2023 WL 7321637 at *2 (10th Cir. Nov. 7, 2023) (unpublished) (“Because Appellants asserted § 1442 as a ground for removal, we have jurisdiction to review the remand order.”). 6 Appellate Case: 25-5094 Document: 51-1 Date Filed: 04/29/2026 Page: 7

III. MERITS

We begin with the appeal of the removed foreclosure action. Mr. Wakat

argues that the parties are diverse and therefore the district court had diversity

jurisdiction. But because Mr. Wakat did not assert diversity jurisdiction in district

court and does not argue for plain error on appeal, we decline to consider the

argument. See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1130–31 (10th Cir.

2011) (holding that when a party forfeits an argument before the district court, “the

failure to argue for plain error and its application on appeal . . . surely marks the end

of the road” for that argument on appeal); Tompkins v. U.S. Dep’t of Veterans Affs.,

16 F.4th 733, 735 n.1 (10th Cir. 2021) (“[O]ur duty to consider unargued obstacles to

subject matter jurisdiction does not affect our discretion to decline to consider

waived arguments that might have supported such jurisdiction.” (internal quotation

marks omitted)).

Mr. Wakat has not challenged the district court’s other ground for remand—

that removal under § 1442(a)(1) was improper because he failed to provide any facts

to show that he is a representative of the United States. He has therefore waived

appellate review of that ground. See Sawyers v. Norton, 962 F.3d 1270, 1286

(10th Cir. 2020) (“Issues not raised in the opening brief are deemed abandoned or

waived.” (internal quotation marks omitted)). Mr. Wakat likewise failed to challenge

the district court’s determination that removal was procedurally improper. Thus, he

has waived appellate review of that issue, too. See id.

7 Appellate Case: 25-5094 Document: 51-1 Date Filed: 04/29/2026 Page: 8

Waiver principles also resolve the appeal of the removed criminal

prosecutions. The district court determined that removal of those proceedings under

§ 1441(a) was improper because the statute is inapplicable to criminal actions, and

removal under § 1442(a)(1) was improper because Mr. Wakat is not a representative

of the United States. Mr. Wakat’s opening brief fails to challenge either ground for

remand. He has therefore waived appellate review of the order remanding the

criminal proceedings. See id.

Finally, Mr. Wakat challenges the district court’s grant of costs and fees to

Mr. Winn. But at the time Mr. Wakat filed his notices of appeal, the district court

had not yet determined the amount of costs and fees in either case, so the notices did

not confer appellate jurisdiction over those rulings. See Collins v. Daniels, 916 F.3d

1302, 1319 (10th Cir. 2019) (explaining that “an appeal from the award of sanctions

may not be taken until the amount has been determined” (internal quotation marks

omitted)). And although the district court later (in October 2025) determined the

amount of the award, Mr. Wakat did not file new or amended notices of appeal from

either of those orders. 4 We therefore lack jurisdiction to review the district court’s

orders awarding costs and fees. See HCG Platinum, LLC v. Preferred Prod.

Placement Corp., 873 F.3d 1191, 1199 n.8 (10th Cir. 2017) (concluding that this

court lacked jurisdiction to consider attorney-fee determination that became final

4 We take judicial notice of the district court’s October 2025 rulings. See United States v. Smalls, 605 F.3d 765, 768 n.2 (10th Cir. 2010) (taking judicial notice of a district court document not designated on appeal). 8 Appellate Case: 25-5094 Document: 51-1 Date Filed: 04/29/2026 Page: 9

after notice of appeal had been filed because appellant failed to file a “new or

amended notice of appeal following” that determination).

IV. CONCLUSION

We affirm the district court’s order remanding the foreclosure action to the

District Court of Wagoner County, Oklahoma. We likewise affirm the district court’s

order remanding the criminal proceedings to the District Court of Houston County,

Texas. We dismiss for lack of jurisdiction Mr. Wakat’s appeals of the district court’s

award of costs and fees. We grant Mr. Wakat’s motion to proceed on appeal without

prepayment of costs and fees (Dkt. No. 10). We deny Mr. Wakat’s “Motion for

Clarification Regarding Appellee Briefing, Rule 31(C) Waiver, Request for Remand

and Request for In-Person Oral Argument” (Dkt. No. 45). We deny as moot

Mr. Wakat’s “Motion to Confirm Applicability of Automatic Stay and for Temporary

Injunctive Relief as to City of Tulsa, Fair Oaks Township, and Related Zoning, Tax,

and Annexation Actions” (Dkt. No. 40).

Entered for the Court

Timothy M. Tymkovich Circuit Judge