TAMMY BELMON BELL v. JON C. THORNBURG
No. 13-30155
United States Court of Appeals for the Fifth Circuit
January 29, 2014
Before STEWART, Chief Judge, KING, and PRADO, Circuit Judges.
Appeal from the United States District Court for the Western District of Louisiana
PER CURIAM:
Plaintiff-Appellant Tammy Belmon Bell‘s petition for rehearing is DENIED. Defendant-Appellee Jon C. Thornburg‘s petition for rehearing to clarify opinion is GRANTED.
The opinion, No. 13-30155, – F.3d —, is hereby WITHDRAWN, and the attached substitute opinion is ISSUED in its place.
EDWARD C. PRADO, Circuit Judge:
Tammy Belmon Bell (“Bell”), a former employee of Jon C. Thornburg (“Thornburg”), the standing bankruptcy trustee for the Western District of Louisiana, filed suit in state court alleging that she had been terminated because of her race in violation of the Louisiana Employment Discrimination Law (“LEDL”),
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
The record is almost entirely devoid of any statements, affidavits, or other evidence. The following facts are taken exclusively from the pleadings in Bell‘s state-court petition. See generally Cavallini v. State Farm Mut. Auto Ins. Co., 44 F.3d 256, 264 (5th Cir. 1995) (“Limiting the removal jurisdiction question to the claims in the state court complaint . . . permits early resolution of which court has jurisdiction, so that the parties and the court can proceed with, and expeditiously conclude, the litigation.”).
Bell, an African-American woman, was employed in the office of the Chapter 13 standing trustee for the Western District of Louisiana for fourteen years, most recently as its office manager. In 2008, Thornburg began serving as the standing trustee for Chapter 13 bankruptcies in the Western District of Louisiana. Bell claims that she and Thornburg disagreed frequently, and the quality of her work life deteriorated after Thornburg‘s arrival. In October 2010, Bell was required to submit to a “peer review,” which three trustees from the National Organization of Chapter 13 Trustees administered. Two of the trustees interviewed Bell, while a third sought input from the local bankruptcy judge. Based in part on statements by the bankruptcy judge that he disliked Bell, the peer review panel suggested to Thornburg that Bell be fired. Thornburg disagreed, but nonetheless believed Bell should be given a different position. Bell remained on the office‘s payroll while Thornburg looked for another position for her in the office, but problems between Thornburg and Bell persisted, and Thornburg ultimately terminated Bell on April 4, 2011. She was replaced by a white woman, who Bell contends was less qualified.
B. Procedural Background
On March 6, 2012, Bell sued Thornburg in Louisiana state court, alleging that she had been terminated because of her race in violation of the LEDL. Thornburg removed to federal district court in the Western District of Louisiana on the theory that, as a standing trustee, he was a person acting under an officer of the United States and thus entitled to remove the suit under the federal officer removal statute,
The magistrate judge assigned to the case found that this Court‘s decision in Cromelin v. United States, 177 F.2d 275 (5th Cir. 1949), precluded the application of
The district court disagreed with the magistrate judge‘s conclusion that removal was improper. The court clarified that even if
The district court then turned to Thornburg‘s motion for summary judgment. The court agreed with Thornburg that because he had not employed more than twenty people during twenty or more weeks in the last year, he could not be considered an employer under the LEDL. The court thus concluded that the LEDL did not apply to Thornburg, and granted his summary judgment motion. Bell timely appealed.
II. DISCUSSION
A. Standard of Review
This Court reviews the denial of a motion to remand de novo. Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 722 (5th Cir. 2002). The Court also reviews a grant of summary judgment de novo, viewing all evidence in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party‘s favor. Pierce v. Dep‘t of the U.S. Air Force, 512 F.3d 184, 186 (5th Cir. 2007). “[S]ummary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (internal quotation marks omitted).
B. Whether the District Court Properly Exercised Jurisdiction over Bell‘s Suit Against Thornburg
The federal officer removal statute,
(a) A civil action or criminal prosecution that is commenced in a State court and that is against or directed to any of the following 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) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, 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. . . .
(3) Any officer of the courts of the United States, for or relating to any act under color of office or in the performance of his duties . . . .
1. Whether Thornburg “act[s] under” an officer of the United States such that removal under the federal officer removal statute is available to him
Bell argues that this Court should remand her claim to state court because, based on this Court‘s decision in Cromelin, Thornburg cannot take advantage of the federal officer removal statute and remove the case under
We hold that Thornburg is a “person acting under” an officer of the United States who may invoke
In concluding that Thornburg meets the “acting under” requirement, we rely on Watson v. Philip Morris Cos., 551 U.S. 142 (2007), the Supreme Court‘s most recent elaboration on this requirement. In Watson, the Court considered whether the Federal Trade Commission‘s close supervision of Philip Morris‘s activities meant the company was “acting under an officer of the United States.” Id. at 145 (emphasis and internal quotation marks omitted). Although the Court held that
Though Bell argues that Chapter 13 standing trustees are private citizens, Watson makes clear that this fact alone does not bar the use of § 1442(a)(1). See 551 U.S. at 151. Chapter 13 standing trustees like Thornburg are appointed pursuant to federal law by the U.S. Trustee for the purpose of assisting the U.S. Trustee with especially heavy Chapter 13 bankruptcy caseloads. See
2. Whether Thornburg has averred “a colorable federal defense”
Bell also claims that Thornburg is not entitled to invoke the federal officer removal statute because he has failed to aver a colorable federal defense and failed to provide any evidence to establish a federal defense. Thornburg counters that, because his employment actions relative to Bell were conducted under the color of office and while performing his official duties, he has averred a colorable federal defense and was entitled to remove this case under the federal officer removal statute. He points this Court to two earlier decisions, Willingham v. Morgan, 395 U.S. 402 (1969) and Palermo v. Rorex, 806 F.2d 1266 (5th Cir. 1987), to support his arguments.
The Supreme Court has made clear that “all the various incarnations of the federal officer removal statute . . . require the averment of a federal defense.” Mesa, 489 U.S. at 133–34. But, the officer seeking removal need not “win his case [by proving his federal defense] before he can have it removed.” Willingham, 395 U.S. at 407. He must only allege “a causal connection between what the officer has done under asserted official authority and the state [action],” Mesa, 489 U.S. at 131 (quoting Maryland v. Soper, 270 U.S. 9, 33 (1926)); see also Jefferson Cnty. v. Acker, 527 U.S. 423, 431 (1999) (“Under the federal officer removal statute, suits against federal officers may be removed despite the nonfederal cast of the complaint; the federal-question element is met if the defense depends on federal law.”).
Having settled the question of whether an officer need prove, rather than merely assert, a federal defense, the Court proceeded to discuss the distinct issue of whether the record in the case would support a finding that the suit involved “conduct under color of office, and that it [was], therefore, removable.” Id. It observed that, in a civil suit of the type at issue in Willingham, “it was sufficient for petitioners to have shown that their relationship to [a] respondent derived solely from their official duties.” Id. at 409. The Court found that the prison officials had made the requisite showing by asserting that “their only contact with respondent occurred inside the penitentiary, while they were performing their duties.” Id. It was enough that the prison officials were “on duty, at their place of federal employment, at all the relevant times. If the question raised is whether they were engaged in some kind of ‘frolic of their own’ . . . they should have the opportunity to present their version of the facts to a federal, not a state, court.” Id.
We hold that Thornburg has averred a colorable federal defense. He has alleged that his “employment actions relative to [Bell] were performed under the color of his office, in the performance of his duties thereunder, after input from the peer review process, and involving communication with and involvement of the United States Trustee and a United States bankruptcy judge.”2 This kind of assertion compares favorably to that found sufficient in Willingham, where the prison officials in affidavits declared that “the only contact [they] had with respondent was inside the walls of the United States Penitentiary . . . in performance of [their] official duties.” 395 U.S. at 407–08 (internal quotation mark omitted).
Our decision in Palermo also bolsters our conclusion that Thornburg has averred a colorable federal defense. Palermo involved a state law wrongful death claim stemming from the workplace harassment of an IRS employee who ultimately committed suicide. 806 F.2d at 1268. We held that because the “state court Complaint specifically alleges that the actions complained of were connected with [the deceased‘s] status as an employee of the IRS,” and the defendants acted “upon the
C. Whether Thornburg is Entitled to Summary Judgment Because He Does Not Qualify As An Employer Under the LEDL
Having determined that removal was proper in this case, we now address whether Thornburg qualifies as an employer under the LEDL. The statute defines an employer as:
a person, association, legal or commercial entity, the state, or any state agency, board, commission, or political subdivision of the state receiving services from an employee and, in return, giving compensation of any kind to an employee. The provisions of this Chapter shall apply only to an employer who employs twenty or more employees within this state for each working day in each of twenty or more calendar weeks in the current or preceding calendar year.
Bell does not dispute that Thornburg has not employed the requisite number of people to qualify as an employer. Instead she argues that Thornburg should be considered part of the larger “association” of “the Chapter 13 system,” which she alleges employs more than 125 people in the state. We need not credit this assertion because Bell provides no evidence for it. See
III. CONCLUSION
For the foregoing reasons, we AFFIRM.
EDWARD C. PRADO
UNITED STATES CIRCUIT JUDGE