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

judgment lien. The of the district court is

therefore affirmed. OHIO, Plaintiff-Appellee,

STATE OF WRIGHT,

Charles E. Ohio State

Highway Trooper, Patrol

Defendant-Appellant.

No. 91-3615. Appeals,

United States Court of

Sixth Circuit.

Reargued Dec. 1992. April

Decided briefed), (argued

David C. Greer Bies- er, Landis, OH, Dayton, plain- Greer & tiff-appellee. Clark,

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

Sean U.S. Justice, DC, Dept, Washington, amicus curiae U.S. Greer, Bieser, Landis,

David C. Greer & OH, Dayton, amicus curiae Kessler. MERRITT, by appeal Judge; and of this title shall be reviewable Chief Before JONES, KENNEDY, MARTIN, KEITH, or otherwise. NELSON, RYAN,

MILBURN, GUY, exception nonreviewability rule of No to this SUHRHEINRICH, BOGGS, NORRIS, applicable to this case. The District Court BATCHELDER, SILER, and Circuit improv- concluded that the case was removed Judges. jurisdiction. idently and without federal nonjuris- dispose did not of the case on Court MERRITT, Judge. Chief grounds, Regis in dictional as Associates v. originated an action-in state appeal This Ltd., Management, Rank Hotels 894 F.2d contempt against the de- for of court court (6th Cir.1990). plau- The Court found no fendant, The state court police officer. sible federal issue or defense and thus re- $12,000in him return to the court ordered manded the case to the state court for lack of drug money. comply He did not confiscated jurisdiction. exception Therefore the narrow the federal officers with whom nonreviewability found in Thermtron deposited the funds refused to return he had Products, Hermansdorfer, Inc. v. him. He removed the case to federal it to 1442(a)(1) on the under 28 U.S.C. inapplicable. Hermansdorfer, the Su- ground contempt that his citation arose out preme allowed review of the district duties an “officer of the United of his “respondent court’s remand order because acting person under him.”1 States purport proceed on the did not basis that initial before us is whether the ‘improvidently [the] case had been removed may police appeal the order of the officer jurisdiction.’ pro- Neither the and without remanding the case to the District Court priety of the removal nor the appears The District Court state court. questioned by respondent in the court was remanded under of the re- have slightest.” Id. at 96 S.Ct. at 589. moval statute because Court believed nonreviewability rule of remand This jurisdiction.” subject matter itself to “lack orders, years first enacted over one hundred important system ago, is to our of federalism. I. litigation should not be de- Parties to state 1447(d) the removal statute fencing layed by procedural over the intrica- plain language prohibits appeals from such in jurisdiction, perplexities cies and of removal orders: remand long interrupt- courts should not be and state litigation their remov- remanding a case to the ed in the conduct of An order State petitions. no difference that the it removed is not al It makes court from which was otherwise, wrong in except its conclu- District Court reviewable on concerning jurisdiction plausibili- or the remanding a sions that an order fed- ty of the federal defense asserted. The it was removed State court from which principle overrides this concern.2 rights eralism pursuant [civil cases] to section recognizes, the limitation found provides: As the Court 1. This section substantially un- has remained (a) prosecution A civil action or criminal changed and this against any since its enactment in a State court commenced consistently provision following persons may them to ruled that the be removed Court has the United States prohibits the district court of form of review of remand orders. embracing place barring and division Congress' purpose of all review pending: it is always very wherein clear—to orders has remand Any States or officer of the United delay removing prevent the additional him, thereof, acting agency person under by seeking appellate party may recon- achieve act under color of such office or of remand. The remov- sideration of an order authority any right, title or claimed account of by Congress works a extended al Congress apprehen- for the Act of litiga- significant in the conduct of interference punishment collec- of criminals or the sion or court. While Con- in state tion commenced the revenue. tion of making forum gress available federal felt that justifies appropriate some such (now Justice) instances Rehnquist ex Justice Chief As delay, obviously thought interruption it dissenting opinion plained in Hermansdor in his a fed- equally important that when removal to fer: Municipal County Miami II. remanded to the Court. dissenting colleagues is as our The view of 233.) Immediately conclu- (App. before this District Court is The action of the follows: gives reasoning in the sion the Court its because, rejecting prof- appealable following paragraphs: two of the defendant defense” fered “federal stated, simply Simply there is no evidence officer, court below heard the police the state the Defendant is an before the Court that merits,” “collateral decided a case “on the “officer, agent, person authorized or other made a issue” other than ... for violation of law to make seizures fails to decision.” The dissent “substantive Moreover, Defendant the customs laws.” adjudication of between an make a distinction argument evidence presents neither nor jurisdiction which question of removal the $12,000in that the seizure of United States of the federal depends on an examination traveling in currency from an automobile adjudication the validi- a final defense and Ohio, County,' was merchandise or Miami on the merits. It ty of the federal defense baggage for violation of the customs seized An examination of the two confuses the two. Therefore, this concludes that laws. Court opinions of the District Court shows has failed to demonstrate that Defendant of the lower court’s dissent’s characterization contempt to the he has a federal defense on the merits is in as a decision decision proceedings. 4, 1991, January the District error. On arguing To the extent that Defendant is stating: Court entered an order 881(d), by incorporating that 21 U.S.C. case, present the Defendant has not relating prop- In the provisions to the seizure of immunity erty identified a federal defense or violation of customs laws into for the present provision property support which would the removal. the forfeiture seized laws, Therefore, provides hereby in violation of a federal the directs the Court defense, file, disagrees. thirty days this Court within Defendant 881(d) “officers, imposes upon duties entry, filing of this a memorandum demon- agents, persons may autho- or other as strating upon what federal defense he re- designated purpose by the rized or for that lies. The Court will thereafter resolve Attorney provid- Defendant General.” has jurisdiction. regarding its issues ed no evidence that he is within this class 214.) (App. stated, Simply persons. this Court is hearing held on The District Court interpret § unwilling to to federal- 30, 1991, police March after the state officer and local law enforcement offi- ize state requested claim- had filed memorandum cers. On-May ing a colorable federal defense. 233.) (App. and final the Court entered second firmly rests its decision on the The Court promised, resolving question ground that there is no “evidence” or show- jurisdiction. In its second order the Court defense, ing giving to a rise states that it must decide “the jurisdiction. hence no removal Whether one properly whether this case removed.” reasoning, it agrees disagrees with this 227.) (App. point At no in its order does police clear that the Court held that the state suggest ruling that it is on the Court merits officer has failed the removed case “to making of the case or is a “substantive deci- he a federal defense to demonstrate that has binding sion” It concludes on officer. its contempt proceedings.” Thus the Dis- second order: trict held that there is no colorable Court defense, upon foregoing, Based here- and it re- claim of a valid federal petition dismisses Defendant’s of re- court for lack of manded the case (Doc. 1). adjudicate jurisdiction. hereby moval # This case is removal It did not affording litigants a means of eral court is not warranted the case should be come a device expeditiously substantially delaying returned to the state court as justice. possible. If this balanced concern is disre- at 423 U.S. at 594-95. garded, provisions federal removal be- 28, 1991, May years ago, on Her- order on almost two The dissent’s reliance merits. misplaced. pending In Hermans- case has been on is thus mansdoifer time, delaying effectively court had “remanded since a con dorfer grounds specified tempt proceeding in the statute the state courts of Ohio. case propriety the remov- touching petition February and not The removal was filed on at 593. 26, 1988. al.” 423 U.S. S.Ct. The result of the removal has been delay justice in the administration of necessary is a element A federal defense for more the state courts than five 1442(a)(1) removal every “federal officer” years. California, 489 U.S. under Mesa v. Our here reinforced Bal decision “authority” their claim con- officers must dridge Kentucky-Ohio Transportation, Congress.” The rule under an “Act of duct Inc., (6th Cir.1993). There, F.2d 1341 dissenting colleagues suggested by our comprehensive survey after a of removal to that all federal officer remov- seems mean appel- cases that an appealability, on we held 1442(a)(1) § appealable despite are als under may late not court review district § plain language of because dis- the remand in a in order case which the defen- necessarily must courts in all such cases trict claiming a state dant removed a com- to federal defense deter- examine the claimed plete preemption Obviously, federal defense. dissenting jurisdiction. view mine their eases, preemption in such removal as federal meaningless to render in all would seem one, in cases like this federal officer removal 1442(a)(1) § cases the rule of nonreviewabili- necessarily the district court examine must ty remand removal cases. of orders of plausibility the the nature and of must examine and discuss the district court Court, Guy, Judge writing for the defense. in all cases and if the federal defense such pointed “the out that so-called ‘collateral is- ipso makes the an examination facto all” “the sue’ was not collateral at because nothing is appealable, left of remand order preemption inquiry necessarily ‘re- here 1447(d): § statutory language in “An the jurisdic- lated the of [removal] to ” remanding a case to the state court opinion tion.’ Id. at 1348. The concluded was removed is not reviewable from which it appellate that an court should not “invoke” a dissenting po- on otherwise.” The the doctrine —whether labeled “decision on language head. Ac- this on its sition turns merits,” or “substantive de- “collateral issue” reads, the now cording to their view statute appellate erects cision”—which 1442(a)(1) § remanding “All orders cases the court had to ground on the district they were state court from which re- federal defense be- examine and discuss the appeal.” are Such an moved reviewable of remanding fore the case for lack removal contrary interpretation jurisdiction. The court that to con- stated 1447(d), contrary plain language of it is clude would undermine the basic otherwise congressional purpose prevent the —“to delay in congressional policy “preventing of delay removing party may additional by protracted cases the trial of remanded by seeking appellate reconsideration achieve jurisdictional at litigation issues.” Id. of prevent an order remand” and to of of feder- question of 1350. Likewise here the removal becoming affording al removal from “a device of the decision was heart substantially delaying litigants means of court, court had and the district justice.”3 The words of a statute can be plausibility of the federal to examine the many they things, read to mean but should making ruling to remand for defense in its opposite not be to mean the exact read jurisdiction. lack removal clearly says and what the what statute clearly congressional policy intended. opinion in Bal follow court’s We dridge pointing that doctrines of reasoning out This case well illustrates also judicata and the case” do not underlying appeal” “no rule in res “law of removal raising from the mer- prevent its final the defendant cases. The court below entered supra. 3. See footnote pursuant unless the case was removed defense in the state court. of his federal

its here, in Bal decision section 1443. Neither the The district court’s Hermansdorfer pursuant “on the merits.” dridge, not a decision this ease was removed was case nor right in as appellate the district court Whether section so there should be no sessing plausibility of the federal defense decision in either case. review of the remand us, opinion should not and our court, before despite clear Hermansdorfer As we having ruled on that issue. be read Congress, decided to review the dictates earlier, ruling our is based on the over said district court’s remand order. expressed by riding federalism interest Con legitimate policy had The court have 1447(d). gress when it enacted refusing reasons for to follow section statutes, prior aside this clear The court’s resort to use Neither should we set however, reviewability interpret away plain meaning congressional policy on being Hermansdorfer, the state officer is 423 U.S. at we believe of section subjected contempt pro to an unfair state is a tour de force ceeding, dissenting colleagues judicial main overreaching. Congress as our made its policy does not au congressional concerning procedure tain. The choice clear decisions on re- thorize such result-oriented reviewing remand orders section 1447(d). viewability Principles of disagreement and the court’s with the result presume appellate courts federalism by Congress mandated is not a sufficient perfectly capable willing are to of Ohio jurisdic- upon appellate which to find basis which occur in the correct errors tion, must be found in law. which contempt proceeding. trial of the state court unwise, Congress pos- section 1447 is then it, prerogative change sesses the to jurisdiction Accordingly, this court lacks federal court. appeal dis- this case and is therefore 1447(d). § pursuant to 28 missed U.S.C. jurisdictional Twisting a clear statute to something mean which it does not mean cre MARTIN, Jr., Judge, BOYCE F. Circuit ates havoc for courts. This court’s effort to concurring. divine whether section 1447 means what it majority opinion I in the authored case, concur says required under the facts of this by Judge Judge sepa- and in Merritt Jones’ progeny, high and its due to Hermansdorfer addition, concurring opinion. In I rate would lights refusing comply the error in to with this like to add that the reason for court’s language. already section 1447’s clear We case, quandary this the reason case, opinions arguing, have numerous this taken, approaches that we have multitude of example, over the distinction between a Supreme refusal in Thermtron is the Court’s defense, “colorable” defense versus a “valid” Products, Hermansdorfer, Inc. v. 423 U.S. ap to determine whether Hermansdorfer 584, (1976), to 96 S.Ct. 46 L.Ed.2d 542 plies. Arguments these show follow the clear dictates of 28 U.S.C. problem fundamental Hermansdor 1447(d). § Supreme is that the Court has created a fer hole, parameters completely of which are Congress could not have written a clearer undefined, in 1447. In section our effort to 1447(d) provides: § statute. 28 U.S.C. explicate Hermansdorfer, the hole created remanding An order a case to the State satisfactory, cogent we will not achieve a court from which it was removed is truly opinion that will be beneficial to future otherwise, appeal except reviewable on problem The root cases. lies nonethe remanding a case to the Supreme less with the Court’s refusal to from which it was removed State court 1447(d). follow section rights pursuant [civil cases] to section 1443 by appeal of this title shall be reviewable JONES, Judge, R. NATHANIEL Circuit or otherwise. concurring. Any reading fair and honest of this statute majority opinion appellate concur with mandates that no court will review jurisdiction that we have no over this a district court’s decision to remand a case holds 1447(c), reading § too Pickwickian to be in accordance with U.S.C. appeal (1988). 1447(d) separately, contrary accepted, language I write howev- to the clear § Thermtron”). er, holding. this give exposition fuller to to a case based on court remands panel originally entertaining ap- If a district this 1447(c) § grounds listed 28 U.S.C. peal seemingly found un- exist (1988),1 the remand court cannot review this jurisdictional exception general der an 1447(d); Thermtron 1447(d) order. rule of for remand orders Hermansdorfer, 423 U.S. Products that are rooted in substantive determinations (1976). 584, 589, law, citing Regis Assocs. v. Rank Hotels this court is without Importantly, (6th Ltd., (Management) F.2d grounded in a remand order Sec- to review Cir.1990). Regis, a remand we reviewed 1447(c) the district court bases its tion even interpretation if order that was based on an jurisdiction that it lacks determination that a a forum-selection clause. We held analysis. legal principles erroneous obtain, writing: appeal direct could “Follow- Thermtron, 96 S.Ct. at 589 Thermtron, body ing of case law has devel- 1447(d) (Section all “prohibits review of re oped holding that a remand order is reviewa- pursuant mand orders issued ble on when is based on a substan- whether re erroneous or not and whether a collateral tive decision on the merits of extraordinary by appeal sought view is opposed just jurisdic- issue as matters of sThi has been the established rule writ. Regis, In line with at least three tion.” Id. predecessors stretch and its other circuits have held that a district court’s 1887.”); v. Southwestern ing Gravitt back dispute resolution of a forum-selection clause Co., 723, 723, 97 S.Ct. Bell Tel. leading a remand is on direct reviewable curiam) (per L.Ed.2d 1 Co., appeal. Chesapeake Foster v. Ins. a dis (though the Fifth Circuit had vacated (3d Cir.1991), cert. 933 F.2d 1210-11 dis remand order because the trict court’s — denied, —, 112 116 U.S. S.Ct. princi employed erroneous trict court “had (1991); Erecting L.Ed.2d 245 Karl Koch Co. juris concluding that it was without ples in Corp., York Dev. 838 v. New Convention Ctr. reversed, diction,” hold Supreme Court (2d Cir.1988); Pelleport 658-59 F.2d that it court’s decision ing that the district Theatres, Investors, Quality Inc. v. Budco jurisdiction plainly lacked falls under Section (9th Inc., Cir.1984); F.2d 276-77 see 741 1447(c) and thus is not reviewable —errone- Court, v. States Dist. also Clorox Co. United not); Corp. America ous or see also Volvo of (9th Cir.1985). ratio 520 779 F.2d Schwarzer, 1331-33, 429 U.S. on direct is that reso nale for review 284, 284-85, 50 L.Ed.2d 273 dispute clause is a lution of a forum-selection chambers) (review in of district (opinion law, separate and distinct matter of contract remanding pursuant a court’s order case of whether a federal district from the issue 1447(c) is barred Section Section subject jurisdiction. matter See court has “may have though the district court even (“the court Pelleport, 741 F.2d at 276 wrong analysis”; taking posi- in its merely remand this case to the state did not jurisdictional findings tion that erroneous court; decision on it reached substantive be reviewable “would mean that should any jurisdictional apart the merits from 1447(c) allegedly application erroneous of added). decision”) (emphasis mandamus, by writ of would be reviewable 1447(d) majority opinion in the instant case in the As the leaving the bar extant notes, jurisdictional underlying policy allegedly proper applications of case reads; 1447(c) just may require payment costs 1. Section fees, attorney expenses, including in- actual basis of A motion to remand the case on the of the removal. A certified curred as result procedure be made defect in removal must copy be mailed of the order of remand shall days filing within 30 after the of the notice court. The 1446(a). the clerk to the clerk of State removal under section at time may thereupon proceed with such State court judgment appears that the district beforefinal court lacks subject jurisdiction, case. the case matter added.) (Emphasis remanding the shall be remanded. An order 28, 1991, prevent protract this Court entered its Decision con is to bar of Section jurisdiction subject disputes cluding over federal it was without matter ed delay resolution on the merits serve to jurisdiction petit would over Defendant’s removal in court. commenced ion.”).2 of an action squarely contem Thermtron, at 96 S.Ct. at also ground plates this for remand. See Therm bypasses a district “[W]here (remand tron, at at 590 and reaches the jurisdictional arguments grounded orders that are on the fact dispute, policy is contract merits of a juris “improvident removal was and without Pelleport, 741 F.2d at 277 inapplicable.” diction” are immune from review under Sec added); see also Karl Koch Erect (emphasis 1447(d)). Thus, tion even the district court if (“This Co., policy is not ing F.2d at 658 legal analysis, erred its the remand order subject- court with applicable when a district by any is immune from review means. See a case on the matter remands Gravitt, 1439; 430 U.S. at 97 S.Ct. at interpretation of a forum-selection basis of its Schwarzer, 97 S.Ct. at U.S. clause.”) added). sum, (emphasis where (“the 284-85; Foster, F.2d at 1211 dis a case was specific issue is not whether given trict court is therefore the last word improvidently to a federal court be removed case”). whether it has to hear the subject court lacks matter cause the federal Trooper Wright seeks to avoid this result jurisdiction, this court entertain a direct (or rather, by invoking logic incanting the appeal of the district court’s resolution Inc., language) Raley’s of Whitman v. that issue. (9th Cir.1989). case, In that F.2d 1177 distinctly presented, issue is A different that, explained generally Ninth Circuit however, the district court’s sole con- where speaking, plaintiff is master his/her leading remand whether the sideration Thus, complaint. generally speaking, under improvidently removed the first case was rule,” “well-pleaded complaint a federal juris- matter instance due to lack of present must be on the face of a the case here. diction. Such is complaint filed state court for the defen- E. Trooper Charles filed State dant to remove the action to a federal court. Contempt pur to Remove a Action Petition Mere assertion of a federal defense will not 1442(a)(1). The district suant removal, serve as a basis for even if the Trooper Wright failed court determined expected federal defense obvious and which, allege or aver a federal defense elaim(s) response brought. the a to There is according Supreme the Mesa v. to rule, exception notable to this however. California, 489 U.S. 103 Congress completely intends to Where necessary 99 is for removal L.Ed.2d area, preempt state law in a certain causes of 1442(a)(1). Mesa, § 489 under 28 U.S.C. arising action thereunder be removed (“Federal 139, 109 at 970 officer U.S. S.Ct. though present a federal is not 1442(a) § 28 must be removal under U.S.C. complaint. face of the If a court the district predicated upon averment of a federal de pre- makes the threshold determination that fense.”); Entry Dismissing and see Decision emption incomplete, it does not have sub- is Removal; Remanded; Cause Petition for ject jurisdiction, matter and must thus re- Entry [hereinafter Termination at 7 Deci mand the case to the state court. a Such (“Herein, petition sion] for removal reviewable, period. remand is not If a dis- pend allege does not a federal defense to the court, however, relies.”). trict makes the threshold ing contempt upon which Defendant preemption complete, is determination that it did not The district court concluded subject matter and does have jurisdiction, thus have matter and (such may thus consider issues Entry Denying De collateral remanded the case. See (“On May “preemption Stay at 1 the merits of defenses” —an is- fendant’s Motion for a § Though cite order to find that the court invoked 2. the district court did not order, thereby reviewing challenged or- decisions and avoid ‘‘[s]everal 1447 in its remand Schools, Community appeals liberally In re Romulus 729 courts will con- der.” show cases). (6th Cir.1984) (citing F.2d 435 reasons for a remand in strue the district court's

623 mand.”). Furthermore, Whitman). generally Trooper Wright id. See sue raised statutory to contend that the federal seems at 1180-81. duty report suspected turn to and over con- apply Trooper Wright seems to Whitman officials, to see 19 traband federal U.S.C. following way. in the the case at bar to 881(d) (1988),3 (1988); 1602 contempt in this arose underlying action extended to him he carried out the was Trooper Wright from a situation where procedures the OSHP had established in con- suspected in the contraband course seized junction Trooper Wright’s with DEA. See stop. He turned a routine traffic over result, Initial Br. at 14. “As a it is per suspected to federal officers contraband Congress clear that has manifested an intent agreement established between the Ohio an governments immunize through to local (“OSHP”) Highway Patrol and the State laws, adoptive seizure federal forfeiture (“DEA”). Drug Administration Enforcement therefore, establishing complete preemp- suspected sought A state court return tion of this area of federal law vested in the Trooper Wright, he and contraband from Trooper Wright’s Supple- federal courts.” request. comply to with this With failed 12; Appellant’s Br. at also mental see Memo- framework, Trooper facts as a these basic Opposition Appellee’s randum in to to Motion gov Wright States observes the United 4 (“Appellant Dismiss at contends that Con- by a may adopt a made ernment seizure gress clearly has manifested its intent to v. official. United States One Ford state adoptive assume federal court Auto., 47 Coupe provi- when it seizure matters enacted (1926); 71 L.Ed. United Kieffer sions of federal law under 21 U.S.C. Section (E.D.Mich.1982). States, 101, 103 F.Supp. 1602.”). Trooper 881 and U.S.C. Section place, Trooper adoption takes When Wright arguing that the seems to be contends, the state official who did implicitly recognized complete fed- seizing retroactively cloaked fed is with preemption having to eral of matters do with authority effective as of moment eral (when, adoptive example, seizures it held (4 Caledonian, the seizure. Trooper Wright acting pursuant to Cf. Wheat.) (1819) (“If 100, 103, 4 L.Ed. authority deposit failed to federal when he adopts party government] the acts [the suspected the seized contraband with' the proceeds property], and to en seizes court), [that “merely disagreed [Ap- with but by legal process, this is force the forfeiture Appellant’s pellant’s] federal defenses.” recognition confirmation of the sufficient Opposition Appellee’s to Memorandum law, seizure, equal validity in and is of at 3. Motion Dismiss Whether authority given original party alleged, or immunities were accord- defenses Trooper Wright, acts understood as ing make the seizure. The confirmation to be issue,” ruling on which is to a com- a “collateral retroactively, equivalent laws; property pro- imposes duty disposition report U.S.C. thereof; property turn over seized for violation of ceeds from the sale the remission forfeitures; customs laws: migration compro- the and of such officer, duty agent, any or apply It the and shall be of of shall to seizures mise claims incurred, person by to sei- authorized law make alleged other or to forfeitures incurred, have been baggage subject to of merchandise or zures provisions of this under the of to violation of the customs laws seizure for subchapter, applicable as in- insofar and not immediately report every to the such seizure hereof; provisions except with the consistent appropriate ... and to turn customs officer imposed upon as are the cus- that such duties and deliver such customs officer over respect person officer of other toms by baggage or him.... ... merchandise seized property forfeiture of to the seizure and 881(d) incorporates provision this performed shall with re- the customs laws be provisions relating property into the forfeiture property spect to the seizures and forfeitures drug for laws: seized violation officers, subchapter agents, by under this § 881. Forfeitures persons may or des- other be authorized Attorney ignated purpose by Gen- that the (d) proceedings applicable Other laws and eral, except arise to the extent that such duties seizure, relating provisions of law by and forfeitures effectuated from seizures forfeiture, summary judicial and condem- any customs officer. property for of the customs nation of violation discussion, complete this should in accordance To on direct reviewable with Whitman.4 Trooper Wright argues also noted that case of In re Romulus the Sixth Circuit argument misguided. is Trooper Wright’s (6th Schools, Community 729 F.2d 431 Cir. court’s determination The district Wright alleged no federal defenses Trooper 1984), jurisdictional supports his contentions. was not a “collateral issue.” or immunities Wright’s Br. at 10. Trooper Initial See Mesa, very it went to the In accordance with In Trooper Wright’s argument misplaced. had, in the the district court heart of whether Romulus, plaintiff had filed a four-count instance, subject jurisdiction matter first court, complaint in state three counts based the case.5 over one count based on federal on state law and addition, made In the district court never the case to The defendants removed law. that federal law had com- determination court, thereupon plaintiffs federal and the adoptive pletely preempted the field of sei- complaint by their filed a motion amend determination, zures. it had made such formed striking the federal claim which had written, have “this case was it never would It clear that basis for removal. County Municipal Miami remanded to the properly removed and that the case had been without because this Court was it. court had to hear the district controversy.” over matter It was also clear that once the case had Entry Denying Defendant’s Motion for a removed, pendent jur- court had Stay at 2 n. 2. the district States, person law to make sei- which has submitted amicus or other authorized 4. The United ” Iaws[,]’ briefs, argument. essentially zures ... for violation of the customs the same It makes Wright "presents argument Trooper neither rejection that the district court’s maintains $12,000.00 that the Wright’s nor evidence seizure Trooper claims to federal defenses and currency trav- United States from an automobile a "substantive decision on immunities constitutes eling County, in Miami Ohio was merchandise opposed just the merits of a collateral issue baggage seized for violation of the customs Opposition jurisdiction.” matters of of Unit- footnote, laws.” Decision at 8. In a the district (quoting at 3 ed States to Motion to Dismiss Trooper Wright 194). had not court concluded that Regis, As will be discussed 894 F.2d at by asserting forthwith, averred a federal defense contention is meritlcss. The deci- this being to federal interests concerning Trooper state court was hostile district court sion absolutely no evidence before because "there Wright's claims to federal defenses and immuni- regarding asserted [the court’s] this Court very jurisdiction; goes ties heart of federal footnote, hostility." Id. at 7 n. 9. In another "opposed to" it. it is not Wright Trooper court determined that district had not asserted federal defense under dissent, Judge Kennedy, in her contends that Trooper Wright provided "has no 881 because Trooper court’s determination that the district persons,” evidence that he is within this class of alleged federal defense was or averred no 8, viz., "officer[], agentf], Decision at [a] on collateral decision[] indeed a "substantive designat- person[ as be authorized or ] other purely jurisdictional apart con- from issue[] Attorney ed ... General.” 21 U.S.C. view, district did not "[the court] cerns.’.’ In her sum, 881(d). Decision at 8 n. 10. In say, Wright, you be- have no colorable defense found no evidence of and no basis district court any such defense. there is no basis to claim cause Rather, claiming a colorable defense. That it went on to examine defense reached this ref- the district court conclusion laws do not forfeiture decided necessarily erence to federal statutes does not incorporate the customs laws.” the conclusion a "substantive decision[ ] make disagree respectfully rendition of with this apart purely jurisdic- issue[ ] collateral from [a] view, my did. the district court what require tional concerns.” Mesa does not you say, Trooper Wright, have did district court court to conclude whether a federal de- is no basis to priori. defense because there requires no colorable fense has been averred a Mesa district court stat- defense. The subject claim ed, "Herein, such "an averment of a federal defense” for petition ... does for removal jurisdiction to inhere and thus removal to matter pending 1442(a). 139, con- allege defense to the a federal under Section 489 U.S. at obtain Decision tempt upon which Defendant relies.” at 969. The district court 109 S.Ct. examined why, opinion, in its 7. It then went on to state the record before it and concluded that such a at defense. basis to claim defense had not averred. Whether or not is no there First, agree Trooper had not we with this determination based on our it concluded that interpretation according of the referents under Section 1602 own alleged federal defense a simply which the district court made its conclusion is of no evidence before “there is because 'officer, agent. Wright] no moment. [Trooper anis Court erroneous, reviewed, clearly may is it not be claims even if over the state isdiction and Therm- according to 28 U.S.C. disappeared. The district law claim federal Thus, tron. agree appeal prop- that this is not based remand court’s decision erly improvidently dismissed. any finding that removal was juris subject matter to lack of granted due NELSON, Judge, A. DAVID Circuit entirely remand decision rested diction. The concurring. “perceived court’s discretion on the district jurisdiction to pendent the doctrine of judgment by I concur in the announced being the case.” Id. at 435. This remand Judge Merritt and in most of the rea- Chief case, that it could this court determined sep- soning employed opinion. in his I write upon petition a for the remand order review however, arately, my it to note belief that Id.; Carnegie see also mandamus.6 writ of no whether the district makes difference Cohill, 348-57, v. -Mellon Univ. 484 U.S. adjudicated the merits of the defendant (1988); 614, 617-22, 98 L.Ed.2d 108 S.Ct. (the by federal defense taken officer’s view Dist., Community Sch. Unit J.O. v. Alton dissent) or held that the defense was not (7th Cir.1990). 909 F.2d 269-71 (the by Judges taken Merritt colorable view Jones).1 at was not remand in bar Thus, jurisdictional. discretionary; it was power to review the What controls our simply inapplicable. Romulus is district court’s remand order is 28 U.S.C. 1447(d). says plainest That statute sum, court made the thresh- the district remanding a case to subject “[a]n of terms that without that it was old determination court from which it was removed is grant Trooper Wright’s the State jurisdiction to matter here contempt not reviewable....” The order at issue removal of the state petition for made, if to the court from even it did remand the case this decision is action. Once sides, lines, my colleagues I believe that it is Along even this on both these it is noted that if appropriate may to draw such a distinction. See review the remand court decided that it case, California, proper procedure Mesa v. 489 U.S. to obtain order in this Supreme where the petition writ of man- is to file a for such review damus, Thermtron, discussing expressed itself thus in appeal. not a direct (6 Wall.) (if Mayor Cooper, 18 L.Ed. a S.Ct. at 593-94 remand U.S. at (1868): complete bar of Sec- order is not be- Court has declared that tion "this removal, only required purposes we "For remanding a removed action does cause an order mayor allege a colorable and aldermen judgment represent reviewable a final law; validity federal of the '[t]he defense under remedy appeal, in such a case is manda- '[t]he authorized to be made is a distinct defence action, compel and not writ of error to mus to inqui- subject. wholly different It involves omitted); ") (citation review what has been done’ .... It has no connection whatever with ries " J.O., ("A problem at 271 ... arises 909 F.2d Mesa, question jurisdiction.' appeal respect plaintiffs’ from the direct quoting Cooper, 73 at holding Supreme Court's order. The remand Wall.) (6 at 254. U.S. Products, only pow- indicates that our Thermtron sure, argue, that the distinc- One could to be through petition a a remand order is er to review and a valid tion between a colorable defense mandamus.”). past Though in the for a writ of dispute disappears as defense where there is no appeal petition a we have treated a direct The district court well have to the facts. mandamus, ("We at 271 will writ of see J.O. meaningful that no distinction existed assumed appeal order as a from the remand treat the bar, explain why the in the case at which would mandamus.”), petition it is further for writ of ground that "De- court ordered a remand on the mandamus of review for noted that the standard that he has a fendant has failed to demonstrate presents difficult obstacle for actions a more assumption would federal Such an defense....” review for direct petitioner than the standard of legal wrong, my view. Where the sufficien- appellant. appeals presents an See In re reasonably cy proffered of a federal defense is Litig., Liability 749 F.2d Bendectin Prods. here, question, it seems to me that a close (6th 1984). Cir. 303-04 retain court can and should way adjudicate in a the merits of the defense permit to be taken to the that would presupposes there is a distinction 1. This appeals. the fact that the legally court of But held to be federal a defense that between probably present im- case was not confer remand and a defense that does insufficient proper whether plausi- does not answer it is not even Congress given power has us to review it. Like enough "colorable.” ble to be considered 626 removed, § if have of 71 and 28 U.S.C. it and words U.S.C.

which was simply provided § not reviewa- meaning the order “is that: ble.” any cause shall be removed Whenever into district court from State court the remand order judge issued The district States, and the court of the United him, rightly wrong- appeared to or it because improperly that the cause was shall decide jurisdiction not exist. ly, did that removal removed, to be re- and order the same obviously that a remand judge believed 1447(c), § which manded to the State court from whence required by 28 U.S.C. was came, judg- immediately any time before final remand shall be says that at “[i]f execution, appears appeal that the district court lacks no from ment it carried into jurisdiction, be subject matter the case shall of the district court so re- decision Products, Inc. v. remanded.” Thermtron manding allowed. such cause shall be 584, Hermansdorfer, 96 S.Ct. added). (emphasis § sec- While U.S.C. suggest not that 46 L.Ed.2d 542 does provided: tion 80 1447(d) ignored § the remand can be where in a district suit commenced misapplication order results from court, or removed from a State court to a 1447(c); Judge § Jones’ concurrence States, it shall district court of the United out, says just opposite. points Thermtron appear of the said dis- to the satisfaction If we would not have 423 U.S. at 343. court, after has trict at time such suit 1447(d) § justified ignoring been thereto, brought removed been or subject erroneously held the district court really substantially such suit does not jurisdiction lacking to be because the matter dispute controversy properly involve a or had no “colorable” federal defendant officer jurisdiction within the said district defense, why I do not see we would court, parties suit have or said eyes to the statute if the entitled to shut our collusively improperly made or erroneously thought it was district court defendants, joined, plaintiffs either as jurisdiction proffered because the de- without purpose creating cogniza- for the case colorable, fense, if was invalid as a even chapter, the ble or removable under this of law. matter proceed no further said district shall therein, but shall dismiss the suit or re- KENNEDY, Judge, dissenting. Circuit it to the court from which it was mand majority’s respectfully dissent from the removed, justice may require, and shall jurisdiction that we have no conclusion make such order as to costs as shall be review mandamus District Court’s just. Although in this case. order of remand added); § (emphasis Her see states that “[a]n statute 28 U.S.C. mansdorfer, 423 at n. U.S. 347-48 remanding a case to the State court 12. The S.Ct. 591 n. Court concluded from which it was removed is not reviewable (d) until when section came otherwise,” majority on being, into Products, Supreme Thermtron Inc. district courts were authorized to remand Hermansdorfer, v. they had cases over no (1976),placed a limitation on “improperly” or which had been otherwise outright prohibition. Where the remand removed, arid district court re- orders “so grounds permitted there is on the statute manding” appealable. were not It was is no review. But where a district court has held that a ease remanded for want of requisite applying “erred in con- which itself provision for remand but has remanded a review, prohibition appellate tained no grounds specified in the statute “improperly” removed case under touching propriety and not the remov- al,” reviewability power 71 and hence appellate court has the Employers bar of that section. Reinsur- correct the error. Id. at 96 S.Ct. at 593 added). Corp. Bryant, (emphasis creating [57 this limitation ance 299 U.S. 374 (1937). predecessor the Court looked to the sections 81 L.Ed. But under 289] 71, immunity “so tried a feder- language of a case was plain fense official added) (Emphasis al reviewability court.” and within remanded” only improperly if it had been prohibition (quoting Willing Id. at 109 S.Ct. at 966 removed. 402, 406-07, Morgan, ham v. 395 U.S. (1969)) 1813, 1815-16, 23 L.Ed.2d 396 S.Ct. (emphasis at 591-92 96 S.Ct. Id. added). (emphasis The reason prior reviewing the doctrine original). After expansively is more dealt officer removal (d), of section and to the enactment Willingham opinion, where in- that the current statute held Court Court stated: respect prior law with to restate the tended officer removal statute is not reviewability. The federal their orders and to remand Symes, “narrow” or “limited.” Colorado thus concluded The Court Hermansdorfer 635, 637, 76 “[tjhere [52 S.Ct. whatsoever that Con- is no indication (1932). least, very At the it is 1253] L.Ed. prohibit re- the new statute to gress meant enough to cover all cases where broad prior under law.” Id. at view allowed federal officers can raise a colorable de 592-93. S.Ct. at arising duty out of their to enforce fense case, present the District Court did In the primary purposes federal law. One of the instant case because it had not remand the history of the removal statute —as its removed,” it did “improperly or that clearly to have demonstrates —was substantially dispute really involve a “not and litigated in defenses the federal courts. jurisdic- controversy properly within the position The of the court below would have Rather, it court.” held tion of said district allowing the anomalous result of removal acting the di- that defendant only clearly the officers had a sus when Drug agents of the Enforcement rection of The suit would be re tainable defense. deposit when he did Administration Congress moved dismissed. $12,000 municipal The District in the court. certainly meant more than this when judge the state court further held that of ... of chose the words “under color contempt not for the defendant for cited fact, important In most fice.” one of the money turn the over to the initial decision to validity reasons for removal is to have the judge’s disobeying the allegedly DEA but immunity of the defense of official tried deposit money with the state order to officer need not win a federal court. The District Court remand court. Nor did the it removed. In his case before he can have have a “color- the defendant did not one, Congress like this has decided cases defense, explained in requirement able” officers, and indeed the Feder that federal California, Mesa v. itself, require protec al Government (1989). Rather, forum.q tion of a federal the federal District Court heard and decided Willingham, 395 U.S. stated in on its merits. As the Court defense added). (1969) (emphasis Mesa, Here, remanded not enough the District Court “is broad the removal statute improperly removed. can because the case was cases where federal officers cover all Rather, laws that the customs’ seizure arising out of it held a colorable raise defense Thus, apply seizures. duty law.... do their to enforce federal more than fact, remand order was important reasons for District Court’s one of the most jurisdictional decision.1 validity purely the de- removal is to have the negotia- exchange, moneys, all to such 1. Section 881 states: instruments, used or intend- and securities ble (a) following shall be to forfeiture any violation of this ed to be to facilitate used right property no shall to the United States and subchapter.... them: exist in instruments, negotiable moneys, secu- All (d) relating provisions to the sei- of law rities, things of value furnished other forfeiture, zure, summary judicial by any person in intended to be furnished ' property for violation condemnation exchange in viola- for a controlled substance laws; property disposition of such subchapter, proceeds customs all traceable tion of this fairly premacy Clause of the Constitution which Judge separate concurrence Jones’ subsequent prosecu- to Her- agent a federal from state “shield[s] covers the authorities believe, and, fairly tion, states the by provided his are both authorized acts mansdorfer make a substan- did District Court necessary issue: the laws of States and the the United My disagree- on the merits? tive decision proper performance to of his duties.” and the Judge is on what the Dis- ment with Jones (6th Kentucky Long, v. F.2d 742-49 you say, Wright, not It did trict Court did. Cir.1988) (extended original) (emphasis in not you since were have no defense colorable area). Here, in of law this discussion the Rather, it said acting officer. as a federal seizure, adopted Wright the once the DEA It did you acting as a federal officer. were required by the laws of the United was de- say, Wright, you have no colorable not property turn over to to the forfeited States no claim there is to fense because basis Thus, both to the DEA. he was authorized Rather, it to examine went on such defense. part performance the of do so and was of drug forfei- the and decided that the defense that his duties. The District Court found incorporate the customs ture laws do proceeds drug the was of seizure laws. baggage of or and not merchandise seized laws, was, consequences Wright District Court’s The the violation the customs incorpo- holding, acting agent, that is no collateral there if a federal not autho- even ration, deprive Wright judge of this feder- may drug proceeds. well The rized to seize the law of case and Wright’s al defense. It is the the rejected argument that U.S.C. applied against Wright be in the state relating well incorporates which the law contempt proceeding, assuming Ohio the property to the seizure of violation of official recognize statute, a defense of federal would drug customs laws into the seizure subjected to a immunity. right The not to be acting person requires he be treated as as a lawfully imple- contempt proceeding for by law to authorized federal make seizures menting drug directives enforcement federal turning property over the seized to DEA impor- acting as a federal officer is an while judge It officers. is unclear whether the that tant one. I believe under Hermansdor- (1) provisions held that the customs’ seizure making deci- fer, an such substantive apply drug proceeds seizures or do apart purely from sions on collateral issues (as he indicated concluded in a footnote concerns, jurisdictional is reviewable. opinion) persons authorized to his Attorney the General could make such Turning Wright’s the then to merits Wright and was not authorized. seizures so defense, correct in the District Court was holding If the basis of the District Court’s holding Wright acting federal was under error, former, the in view it was and allegedly disobeyed Judge officials he when adopted statute the com- of the seizure $12,000 deposit Kessler’s order to the seizures, adoptive law on had at mon DEA. The had been turned over the Supreme least colorable defense. adopted the There can be DEA had seizure. recent of seizure law and Court’s discussion the can no but that States United incorporation laws of the customs’ seizure adopt governmental made seizure through seizure laws the 1978 Coupe into Ford entities. United States One Comprehensive Drug Abuse Automobile, amendment 47 S.Ct. (1926). Act of 84 Stat. defense that Prevention and Control L.Ed. 279 (21 881(d)), U.S.C. removes doubt Trooper Wright seeks to Su- assert thereof; property per- under the customs laws shall be proceeds from the sale forfeitures; mitigation respect remission or of such formed with to seizures and forfeitures apply compromise of claims shall subchapter by property under this such offi- incurred, alleged to seizures and forfeitures cers, agents, persons may autho- or other be incurred, provi- have been designated purpose by for that rized applicable subchapter, sions this insofar as General, Attorney except to extent that provisions with here- and not inconsistent of; duties arise from seizures and forfeitures imposed except as are that such duties by any effected customs officer. person upon customs officer or other (d). 881(a)(6) respect and forfeiture of seizure laws, enforcement officer to make seizures of including the common law customs seizures, Drug Prevention applica property are under the Abuse relating to customs’ law drug pro drugs and A law enforcement offi- the seizure of and Control statute. ble to Buena v. 92 Vista See United States cer so authorized should shielded ceeds. — Rumson, U.S. —, Ave., contempt pro- from state supremacy clause (1993). know, far as we So 122 L.Ed.2d ceedings.3 A district court should not be and in this case no innocent owner there is officer of deprive able to the law enforcement proceeded administrative the forfeiture has way in a insulated from review. that shield ly- Congress cannot have intended these stat- Wright argues operate otherwise. utes to holding of the District Court’s If the basis Attorney adopting that in a seizure the Gen- by been authorized Wright had not was that retroactively authorizes the local law eral seizures, drug Attorney to make General officer to act under the enforcement statute drug sei- likely in error. The that too was authority equal is “of so that the retroactive statute, provides zure U.S.C. authority” validity original with an performed law “shall be that seizures officers, agree agents, persons provides other a federal defense. I that by or thus designated that may for be authorized more than a colorable he has raised defense. Attorney by the General.” purpose adoption of retroactive of the effects under either The Caledonian com- seizure spo- Supreme Court has not Although the adoptive or the seizure mon law standard govern- effect of the federal ken about the provisions, are both issues which should be officer’s seizure adoption of a state ment’s The criminal in a federal forum. decided status, spoken with it has upon that officer’s designed was for this action removal statute person’s status after a respect private Caledonian, very purpose. In The private seizure. (4 Wheat.) 100, 103, 4 L.Ed. Jr., GUY, Judge, RALPH B. Circuit stated:

the Court concurring part the dissent. with any person may general rule that is a [I]t to the use of any property forfeited Judge seize Kenne- portion I concur in that municipal either government, jurisdiction- dy’s opinion deals with the prize, purpose for the byor the law of however, law agreement, I am not al issue. it de- enforcing the forfeiture. And opinion that con- portion that of the itself, government whether pends upon the was correct cludes “the District Court adopts upon the seizure. it will act acting under the holding Wright was proceeds to party, the acts of alleged- he officials when direction of federal by legal process, this the forfeiture enforce deposit ly disobeyed Judge Kessler’s order recognition and confirmation is a sufficient $12,000 turned over which had been seizure, validity in equal of the DEA.” I do not believe authority given original law with officer, nor do believe acting as a federal confirma- the seizure. The party to make any federal official he is entitled equivalent to retroactively, and is tion acts immunity defense. a command.2 added). (Emphasis Attor- provides

21 U.S.C. any or local may designate

ney General following persons be removed them seizure so was a warrantless 2. The seizure here possible complication of a States not have the of the United we do the district court pursuant warrant. to a state search seizure proceedings. forfeiture There were no state Any the United States or officer of him, thereof, acting agency person under a state action federal court of 3. Removal to any’ of such office or on act under color making a fed- against enforcement officer a law authority right, claimed title account provided erally seizure is authorized Congress apprehen- Act of 1442(a)(1). Under section the collec- punishment of criminals or sion or (a) prosecution A civil action or criminal revenue. against tion of in state commenced

Case Details

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

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Apr 30, 1993

Citation: 992 F.2d 616

Docket Number: 91-3615

Court Abbreviation: 6th Cir.