Opinion
No. 1:04-cv-283.
November 8, 2004
MEMORANDUM
Plaintiffs filed this civil action in the Chancery Court of Hamilton County, Tennessee, and the defendant removed it to this Court. In the notice of removal, the defendant states it is effecting removal pursuant to 28 U.S.C. § 1441(a), (b) and (c), and 28 U.S.C. § 1443. Defendant seeks to invoke this Court's subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. There is no diversity jurisdiction under 28 U.S.C. § 1332.
Plaintiffs move to remand to state court arguing that removal is improper because their complaint only asserts causes of action under Tennessee law and does not plead any federal causes of action. Defendant opposes remand. After reviewing the record, the Court concludes the motion to remand [Court File No. 2] is well taken and it will be GRANTED pursuant to 28 U.S.C. § 1447(c) on the ground of lack of subject matter jurisdiction. I. Plaintiffs' Complaint
In their complaint, the plaintiffs make the following allegations. Plaintiff Clinton Walker ("Walker") was employed by defendant City of Collegedale, Tennessee ("City") as a Lieutenant in the City police department. Plaintiff Gary Will, Jr. ("Will") was employed by the City as Chief of Police. The City is located in Hamilton County.
Due to policies of City officials concerning police equipment and training, Walker and Will had concerns for the safety of City residents. Walker expressed to other law enforcement agencies that he was concerned about the safety of City residents and the acts of City officials. In September 2003, City Vice Mayor Tim Johnson demanded that Chief of Police Will terminate Walker for making these statements. Will refused to terminate Walker's employment with the City police department. Will took the position that Walker had not done anything wrong to warrant termination since Walker had exercised his constitutional right of free speech to comment on matters of public concern. The complaint avers that the termination of Walker for exercising his constitutional right of free speech would be an illegal act and that Will refused to perform this illegal act. The City terminated the employment of both Walker and Will in October 2003.
Plaintiffs claim they were wrongfully discharged. It is alleged that prior to their termination, Walker and Will were deprived of their right to due process as guaranteed to City employees and police officers under TENN. CODEANN. §§ 38-8-301 et seq. Although the complaint alleges deprivation of the plaintiffs' right to due process, the complaint does not identify the Due Process Clause of the Fourteenth Amendment to the United States Constitution as being a source of the plaintiffs' right to due process. The due process claim is a state law cause of action predicated solely upon TENN. CODE ANN. §§ 38-8-301 et seq.
Plaintiffs have taken care to draft their complaint to plead causes of action only under Tennessee law. Plaintiffs do not raise any federal causes of action under 42 U.S.C. § 1983, 42 U.S.C. § 1985, or other federal statutes. The complaint pleads four counts or causes of action under Tennessee law.
Count One is captioned "Whistleblower" and is predicated on TENN. CODE ANN. § 50-1-304, which provides: "No employee shall be discharged or terminated solely for refusing to participate in, or for refusing to remain silent about, illegal activities." The term "illegal activities" is defined in § 50-1-304(c). Section 50-1-304(c) provides that "illegal activities" means activities which are in violation of the criminal or civil code of the State of Tennessee or the United States of America, or any regulation intended to protect the public health, safety or welfare. This Court expresses no opinion whether Walker and Will have viable causes of action under § 50-1-304 based on alleged "illegal activities" by the City. For purposes of this opinion and deciding the limited question of removal and subject matter jurisdiction, it is sufficient to recognize that Count One of the plaintiffs' complaint asserts causes of action by Walker and Will under TENN. CODE ANN. § 50-1-304.
Count One claims that Walker's employment was terminated by the City in violation of TENN. CODE ANN. § 50-1-304 because he expressed objections to actions by the City that, in Walker's view, endangered City residents. It is further claimed in Count One that Will's employment was terminated by the City in violation of § 50-1-304 when Will refused to discharge Walker from employment which would have been in violation of the Tennessee Constitution and the United States Constitution.
Count One does not specify any particular sections of the Constitution of the State of Tennessee or the United States Constitution. The Court infers that Will's claim under Count One implicitly relies upon Walker's right to freedom of speech protected under both Article I, Section 19 of the Tennessee Constitution and the Freedom of Speech Clause in the First Amendment to the United States Constitution made applicable to the States through the Equal Protection Clause in the Fourteenth Amendment. As the Court reads and understands Count One, Will claims the City violated TENN. CODE ANN. § 50-1-304 when the City terminated Will's employment as Chief of Police in retaliation for Will's refusal to commit an illegal act, namely Will's refusal to violate the Tennessee Constitution and the United States Constitution by terminating Walker's employment as a City police officer when Walker exercised his right to free speech by commenting upon matters of public concern. With regard to the plaintiffs' motion to remand, the key issue to be resolved is whether Will's wrongful discharge claim brought under TENN. CODE ANN. § 50-1-304 and his reliance on the First Amendment to the United States Constitution as an alternative theory raises a question of federal law that is sufficient to invoke this federal district court's original "arising under" jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1441(a) and (b). See Long v. Bando Mfg. of America, Inc., 201 F.3d 754 (6th Cir. 2000).
Count Two asserts a cause of action under Tennessee law predicated on the theory that Walker and Will were deprived of their right to due process guaranteed under TENN.CODEANN. §§ 38-8-301 et seq. It is alleged that Walker and Will were never allowed a name-clearing hearing on the stigmatizing reasons given by the City for their termination. Under Count Two, the plaintiffs demand injunctive relief to require the City to implement the policies established by TENN. CODE ANN. §§ 38-8-301 et seq., and to afford the plaintiffs the benefit of the Tennessee statutory procedures. Plaintiffs also demand damages as a result of the City's willful disregard of the duty owed by the City to the plaintiffs under TENN. CODE ANN. §§ 38-8-301 et seq.
Count Two is predicated on purely Tennessee law. Plaintiffs do not raise any due process claims under federal law. In their complaint, the plaintiffs do not cite or seek to rely upon the Due Process Clause in the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. Count Two is not a cause of action created by federal law.
Count Three of the complaint, captioned "Retaliation," is a claim that Will was terminated in violation of TENN. CODE ANN. § 50-1-304 for refusing to perform an illegal activity, i.e. Will refused to terminate Walker's employment. Count Three appears to be redundant to Will's § 50-1-304 claim asserted in Count One. Count Four claims that the plaintiffs were terminated from employment by the City in violation of Tennessee public policy.
II. Standard of Review
As the removing party, defendant City bears the burden of showing that removal is proper and that this Court has subject matter jurisdiction. Wilson v. Republic Iron Steel Co., 257 U.S. 92, 97-98 (1921); Long, 201 F.3d at 757; Her Majesty The Queen v. City of Detroit, 874 F.2d 332, 339 (6th Cir. 1989). A federal court's jurisdiction under the removal statutes constitutes an infringement upon state sovereignty, and the federal removal statutes are narrowly construed in favor of state court jurisdiction. Shamrock Oil Corp. v. Sheets, 313 U.S. 100, 108-09 (1941); First Nat. Bank of Pulaski v. Curry, 301 F.3d 456, 462 (6th Cir. 2002); Long, 201 F.3d at 757; Brierly v. Alusuisse Flexible Pkg., Inc., 184 F.3d 527, 534 (6th Cir. 1999); Alexander v. Electronic Data Systems Corp., 13 F.3d 940, 948 (6th Cir. 1994); Her Majesty The Queen, 874 F.3d at 339.
"Due regard for state governments' rightful independence requires federal courts scrupulously to confine their own jurisdiction to precise statutory limits." Ahearn v. Charter Township of Bloomfield, 100 F.3d 451, 454 (6th Cir. 1996). Principles of comity and federalism dictate that federal removal jurisdiction should be exercised only when it is clearly established. Any ambiguity regarding the scope of the removal statutes is resolved in favor of remand to state court. Brierly, 184 F.3d at 534.
III. Analysis
The Court concludes that removal is improper because this Court lacks subject matter jurisdiction over the plaintiffs' complaint. The federal statutes cited by the defendant do not authorize removal of this case. Defendant has not met its burden of showing that removal is proper.
A. Federal Question Jurisdiction: 28 U.S.C. §§ 1331 and 1441(a) and (b) 28 U.S.C. § 1441(a) provides that any civil action brought in a state court of which the district courts of the United States have original jurisdiction may be removed by the defendant. 28 U.S.C. § 1441(b) provides in part: "Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties." Generally, a civil action filed in state court may be removed under § 1441(a) and (b) only if the case could have originally been brought in federal court and the federal court would have had original subject matter jurisdiction. Rogers v. Wal-Mart Stores, Inc., 230 F.3d 868, 871 (6th Cir. 2000); Long, 201 F.3d at 757; Strong v. Telectronics Pacing Systems, Inc., 78 F.3d 256, 259 (6th Cir. 1996).
In the instant case, removal is improper because the plaintiffs' complaint could not have originally been brought in federal district court. This Court does not have original subject matter jurisdiction over any of the plaintiffs' claims. The complaint pleads claims under Tennessee law, and there are no federal causes of action asserted under 42 U.S.C. § 1983 or otherwise. This Court does not have subject matter jurisdiction over the plaintiffs' state law causes of action under 28 U.S.C. §§ 1331 and 1343. There is no diversity jurisdiction under 28 U.S.C. § 1332.
28 U.S.C. § 1331 provides: "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." Because the "arising under" language of 28 U.S.C. § 1441(b) is almost identical to the language in § 1331, the scope of removal jurisdiction under § 1441(b) based on the existence of a federal question is considered to be identical to the scope of jurisdiction under § 1331. Caterpillar, Inc. v. Williams, 482 U.S. 386, 391-92 (1987); Long, 201 F.3d at 757-58; Majeske v. Bay City Bd. of Educ., 177 F. Supp.2d 666, 670 (E.D. Mich. 2001).
In determining federal question jurisdiction under 28 U.S.C. § 1331 and removal jurisdiction under § 1441(a) and (b), the Court applies the well-pleaded complaint doctrine. Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 808 (1986); Loftis v. United Parcel Service, Inc., 342 F.3d 509, 514-15 (6th Cir. 2003); Long, 201 F.3d at 758; Strong, 78 F.3d at 259; In re Cardizem CD Antitrust Litigation, 90 F. Supp.2d 819, 836 (E.D. Mich. 1999). Jurisdiction exists under § 1331 when a federal question is presented on the face of a properly pleaded complaint. Rivet v. Regions Bank of LA., 522 U.S. 470, 475 (1998); Caterpillar, 482 U.S. at 392-94; Loftis, 342 F.3d at 514; Michigan Southern R.R. Co. v. Branch St. Joseph Counties Rail Users Ass'n, Inc., 287 F.3d 568, 573 (6th Cir. 2002); Long, 201 F.3d at 758; Strong, 78 F.3d at 259; see also Grable Sons Metal v. Darue Engineering, 377 F.3d 592, 594 (6th Cir. 2004) (Whether a claim presents a federal question is determined from what appears in the plaintiff's statement of his own claim).
Under the well-pleaded complaint doctrine, plaintiffs Walker and Will are the masters of their complaint. Plaintiffs have the right to avoid federal subject matter jurisdiction and preclude removal of their suit from state court by relying exclusively on state law claims in their complaint. Ahearn, 100 F.3d at 456; Alexander, 13 F.3d at 943; Her Majesty The Queen, 874 F.2d at 338-39. Subject matter jurisdiction cannot be sustained on a claim that a plaintiff has not advanced in the complaint. Merrell Dow, 478 U.S. at 809 n. 6; The Fair v. Kohler Die Specialty Co., 228 U.S. 22, 25 (1913); Loftis, 342 F.3d at 514-15.
Under the well-pleaded complaint doctrine, the fact that a wrong claimed by a plaintiff could be addressed under either state law or federal law ordinarily does not diminish the plaintiff's right to chose to pursue only a state law cause of action. Id. at 315; Alexander, 13 F.3d at 943. As a general rule, a state law claim cannot be "recharacterized" as a federal claim for the purpose of determining removal jurisdiction unless the state law claim is completely preempted by federal law. Rivet, 522 U.S. at 475-76; Caterpillar, 522 U.S. at 392-93; Loftis, 342 F.3d at 515; Strong, 78 F.3d at 259; see also Long, 201 F.3d at 759. In the instant case, the plaintiffs' claims are not preempted by federal law.
Federal-question jurisdiction under 28 U.S.C. § 1331 exists in two basic categories of cases. A claim "arises under" federal law and there is federal-question jurisdiction either when federal law creates the cause of action, or a plaintiff's right to relief on a state law cause of action necessarily depends on the resolution of a substantial question of federal law, i.e., federal law is a necessary element of a well-pleaded state law claim. Christianson v. Colt Industries, 486 U.S. 800, 808 (1988); Merrell Dow, 478 U.S. at 806 n. 2, 808-09, 813; Franchise Tax Board of California v. Construction Laborers Vacation Trust, 463 U.S. 1, 13, 27-28 (1983); Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 816 (4th Cir. 2004); Howery v. Allstate Ins. Co., 243 F.3d 912, 917 (5th Cir. 2001); Mulcahey v. Columbia Organic Chemicals Co., Inc., 29 F.3d 148, 151 (4th Cir. 1994).
The well-pleaded complaint rule focuses on claims not theories. Christianson, 486 U.S. at 811; Franchise Tax Board, 463 U.S. at 26 and n. 29. Just because an element that is essential to a particular theory might be governed by federal law does not mean that the entire claim "arises under" federal law for purposes of conferring federal question jurisdiction under 28 U.S.C. § 1331. Christianson, 486 U.S. at 811.
The vast majority of cases that "arise under" federal law and fall within federalquestion jurisdiction under § 1331 are those in which federal law creates the cause of action. Christianson, 486 U.S. at 821 (Stevens, J., concurring); Merrell Dow, 478 U.S. at 808. After reviewing the plaintiffs' complaint in the instant case, this Court concludes that none of the plaintiffs' claims pose a federal question under the first category. All of the plaintiffs' claims are causes of action created by Tennessee law and not federal law.
None of the plaintiffs' claims fall into the second category. A federal question can be raised even though a plaintiff's claim is a state-created cause of action. Federal-question jurisdiction is appropriate where a substantial question of federal law is a necessary or essential element of a plaintiff's well-pleaded state law claim. A case may "arise under" federal law for purposes of invoking jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1441(b) where the vindication of a right under state law necessarily turns on the construction and application of federal law. Merrell Dow, 478 U.S. at 808-09; Franchise Tax Board, 463 U.S. at 9-13; Gully v. First. Nat. Bank in Meridian, 299 U.S. 109, 112 (1936); Howery, 243 F.3d at 917; Rains v. Criterion Systems, Inc., 80 F.3d 339, 345 (9th Cir. 1996); U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 389 (3rd Cir. 20020. This rule, however, must be applied with caution. Merrell Dow, 478 U.S. at 809-14. The mere presence of a federal issue in a state law cause of action does not automatically confer federal question jurisdiction. Merrell Dow, 478 U.S. at 813.
The Sixth Circuit utilizes a three-part test. A federal question may arise out of a state law claim if the plaintiff asserts a federal right that: (1) involves a substantial question of federal law; (2) is framed in terms of state law; and (3) requires interpretation of federal law to resolve the claim. Grable, 377 F.3d at 595-96; Long, 201 F.3d at 759; accord Howery, 243 F.3d at 917-18. A plaintiff's right to relief for a particular state law cause of action necessarily depends on and arises under federal law only when every legal theory supporting the claim requires the resolution of a substantial question of federal law. Dixon, 369 F.3d at 816-17.
This Court concludes that the right of plaintiffs Walker and Will to relief on their respective claims does not necessarily depend on the resolution of a question of federal law. Federal law is not a necessary or essential element of any of the plaintiffs' well-pleaded claims. The only claim arguably in dispute on this point is Count One of the complaint wherein plaintiff Will asserts a claim under TENN. CODE ANN. § 50-1-304 predicated on the right to freedom of speech protected under Article I, Section 19 of the Tennessee Constitution and the Freedom of Speech Clause in the First Amendment to the United States Constitution.
Will brings a state law cause of action under TENN. CODE ANN. § 50-1-304 contending that the City terminated his employment because Will refused to commit an illegal act, namely Will refused to terminate Walker's employment which would have constituted a violation of Walker's right to free speech protected under the Tennessee Constitution and the United States Constitution. Because Will relies upon both the Tennessee Constitution and the United States Constitution in making this claim in Count One, the Court is not necessarily required to interpret federal law to resolve the claim. Will's claim in Count One can be decided based solely on the Tennessee Constitution without the necessity of reaching and addressing the federal constitutional question. In sum, there is no federal-question jurisdiction over Will's wrongful discharge claim in Count One because a substantial question of federal law is not a necessary, essential element of this state law claim. Will's claim brought pursuant to TENN. CODE ANN. § 50-1-304 does not "arise under" federal law and does not confer subject matter jurisdiction and removal jurisdiction under 28 U.S.C. §§ 1331 and 1441(a) and (b) because the vindication Will's right under the Tennessee statute does not necessarily turn on the application or construction of federal law.
When a state-created cause of action is supported by alternative, independent theories — one of which is a state law theory and the other a federal law theory — federal question jurisdiction does not attach because federal law is not an essential or necessary element of the cause of action. Christianson, 486 U.S. 800; Dixon, 369 F.3d at 816-18; Howery, 243 F.3d at 917-19; Long, 201 F.3d at 759-61; Rains, 80 F.3d at 346-47; Mulcahey, 29 F.3d at 153. Although Will's wrongful discharge claim brought under TENN. CODEANN. § 50-1-304 is supported by a federal law theory, i.e., the Freedom of Speech Clause in the First Amendment to the United States Constitution, there is no federal question jurisdiction because Will's claim is also supported by an alternative, independent state law theory based on the Tennessee Constitution. In cases involving state law claims for wrongful discharge from employment based on both state policy and federal policy or a federal law theory, such wrongful discharge claims cannot be removed to federal court because they do not invoke federal question jurisdiction ("arising under" jurisdiction) under 28 U.S.C. §§ 1331 and 1441(a) and (b). Long, 201 F.3d at 760-61 (Resolution of federal question was not necessary or essential to the adjudication of state law wrongful discharge claim where complaint put forth alternate state and federal policies to support claim); Campbell v. Aerospace Corp., 123 F.3d 1308, 1315 (9th Cir. 1997); Willy v. Coastal Corp., 855 F.2d 1160, 1167-72 (5th Cir. 1988); Scaccia v. Lemmie, 236 F. Supp.2d 830, 836-38 (S.D. Ohio 2002); Strong v. Print, U.S.A., Ltd., 230 F. Supp.2d 798 (N.D. Ohio 2002).
Although 28 U.S.C. § 1441(c) is cited in the notice of removal, the parties have not discussed and furnished the Court with legal analysis of § 1441(c). The Court concludes that § 1441(c) is not applicable and it does not give the City the right to remove this case.
28 U.S.C. § 1441(c) provides that whenever a "separate and independent claim or cause of action within the jurisdiction conferred by," 28 U.S.C. § 1331 "is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates." Section 1441(c) is narrowly, strictly construed in favor of state court jurisdiction and against removal. When Congress enacted § 1441(c), it intended to restrict rather than expand the scope of removal of cases from state courts. American Fire Casualty Co. v. Finn, 341 U.S. 6, 9-10 (1951); First Nat. Bank of Pulaski, 301 F.3d at 464; Andrews v. Electric Motor Systems, Inc., 767 F. Supp. 853, 855 (S.D. Ohio 1991).
The plain legislative intent and purpose of § 1441(c) is to allow removal when a plaintiff or plaintiffs join multiple claims or causes or action together in a complaint, one of which supports removal jurisdiction because it raises a federal question that falls within the ambit of federal question jurisdiction conferred on federal district courts under 28 U.S.C. § 1331. Removal is improper under § 1441(c) in the instant case because the plaintiffs do not assert a separate and independent claim that comes within the ambit of original federal question jurisdiction under 28 U.S.C. § 1331.
Defendant has not specified the particular subsections of 28 U.S.C. § 1343 that it contends allow this Court to exercise original subject matter jurisdiction over the plaintiffs' complaint. Defendant does not discuss or provide any meaningful legal analysis of § 1343 in its response to the motion to remand. [Court File No. 3]. In the absence of legal argument and an explanation from the defendant, the Court concludes that the defendant cannot invoke this Court's subject matter jurisdiction under 28 U.S.C. § 1343. The defendant's effort to remove the case based on the contention that this Court may exercise jurisdiction under § 1343 fails.
28 U.S.C. § 1343(1) and (2) clearly are not applicable because the plaintiffs are not asserting any claims under 42 U.S.C. § 1985.
28 U.S.C. § 1343(3) provides that the federal district courts have original jurisdiction of any civil action authorized by law to be commenced by any person to "redress the deprivation under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or all persons within the jurisdiction of the United States." Plaintiffs have not asserted any federal claim or cause of action to redress the deprivation under color of state law of any right, privilege or immunity secured to them by the United States Constitution. Rather, the plaintiffs plead state law claims of wrongful discharge from employment under Tennessee law. Plaintiffs do not make any claim for relief under an Act of Congress providing for equal rights of citizens or persons within the jurisdiction of the United States. Under these circumstances, 28 U.S.C. § 1343(3) is not applicable.
28 U.S.C. § 1343(4) provides that the district courts have original jurisdiction of any civil action authorized by law to be commenced by any person to "recover damages or to secure equitable or other relief under any act of Congress providing for the protection of civil rights, including the right to vote." Section 1343(4) does not apply because plaintiffs Walker and Will do not assert any claims for relief under an act of Congress (federal statute) providing for the protection of federal civil rights. Plaintiffs do not make any federal claims or plead any federal causes of action under 42 U.S.C. §§ 1983 and 1985, or other federal statutes.
The notice of removal also states the case is being removed pursuant to 28 U.S.C. § 1443. The parties do not bother to discuss § 1443 in their briefs. Defendant does not offer any explanation as to the reason why it relies on § 1443.
The defendant's reliance on § 1443 is misplaced. 28 U.S.C. § 1443 is not applicable here and does not support removal of this case. Section 1443 is a special statute that deals with certain very specific, discrete problems where a defendant cannot enforce the defendant's federal civil rights in state court. Conrad v. Robinson, 871 F.2d 612, 614 (6th Cir. 1989). Section 1443 differs significantly in its thrust from the federal question removal statute, 42 U.S.C. § 1441, in that § 1443 looks to a defendant's federal civil rights claims or defenses as the basis of removal rather than the plaintiff's complaint. Section 1443 "is specifically designed to extricate protected persons from state civil and criminal prosecution and provide instead a federal forum." Id. Defendant City of Collegedale does not argue and has not met its burden of showing that there is any valid reason why it should be allowed to remove this case under § 1443 on the ground that the City is being denied or cannot enforce its own federal civil rights in state court.
With regard to 28 U.S.C. § 1443(1), a two-prong test has been developed to determine whether a case may be removed. First, defendant City of Collegedale must show that it is being denied or cannot enforce in the state courts a federal civil right. Second, the defendant must show the particular right involved is one that arises under a federal law that provides for specific civil rights stated in terms of racial equality. Section 1443(1) is restricted to cases raising an issue of racial discrimination against the removing defendant. Johnson v. Mississippi, 421 U.S. 213, 219 (1975); City of Greenwood v. Peacock, 384 U.S. 808 (1966); Georgia v. Rachel, 384 U.S. 780 (1966); Neal v. Wilson, 112 F.3d 351, 355 (8th Cir. 1997); Commonwealth of Kentucky v. Franklin, 70 F.3d 1271 (Table, text at 1995 WL 696905 (6th Cir. Nov. 20, 1995)); Doe v. Berry, 967 F.2d 1255, 1257 (8th Cir. 1992); Conrad, 871 F.2d at 614-15; McQueary v. Jefferson County, Kentucky, 819 F.2d 1142 (Table, text at 1987 WL 37567, **2 (6th Cir. June 2, 1987)); Appalachian Volunteers, Inc. v. Clark, 432 F.2d 530, 534-35 (6th Cir. 1970). Because the City has not met its burden of showing that it satisfies the elements of this test, removal under § 1443(1) is improper.
28 U.S.C. § 1443(2) provides that civil actions or criminal prosecutions commenced in state court may be removed by a defendant: "For any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the ground that it would be inconsistent with such law." Section 1443(2) contains two clauses which require different analysis.
The first clause of § 1443(2), "for any act under color of authority derived from any law providing for equal rights," is available as a basis for removal only to defendants who are officials, agents, and employees of the United States government and to those persons assisting such federal officers in the performance of their official government duties. City of Greenwood, 384 U.S. at 815; Bone v. City of Louisville, 215 F.3d 1325 (Table, text at 2000 WL 761870, **2 (6th Cir. May 30, 2000)); McQueary, 1987 WL 37567 at **3; Detroit Police Lieutenants and Sergeants Assoc. v. City of Detroit, 597 F.2d 566, 568 (6th Cir. 1979); Appalachian Volunteers, 432 F.2d at 534. The first clause of § 1443(2) is not applicable because defendant City of Collegedale is not an official or agent of the United States government and it does not claim to be a person assisting any federal government officers in the performance of their official duties.
The second clause of § 1443(2), "for refusing to do any act on the ground that it would be inconsistent with such law," does not apply to the instant case. This language, sometimes referred to as the "refusal clause," is designed to protect state officers from being penalized for failing or refusing to enforce discriminatory state laws or policies by providing for removal to a federal forum in which to litigate such issues. The second clause of § 1443(2) is only available to removing defendants who are officers, employees, or agents of state government. City of Greenwood, 384 U.S. at 824 n. 22; Irvin v. Sheriff of Jefferson County, Kentucky, 173 F.3d 855 (Table, text at 1999 WL 98536 (6th Cir. Jan. 28, 1999)); McQueary, 1987 WL 37567 at **4; Detroit Police Lieutenants, 597 F.2d at 568.
The second clause of § 1443(2) does not provide a basis for removal in the instant case. Defendant City of Collegedale does not contend that it was acting as an officer or agent of Tennessee state government. Moreover, the City does not contend and has made no showing that if this case is litigated in the Tennessee state courts, the City will somehow suffer an injustice and be penalized for failing or refusing to enforce discriminatory Tennessee state laws or policies.
In sum, there is no removal jurisdiction under any provision of 28 U.S.C. § 1443.
IV. Conclusion
The plaintiffs' motion to remand [Court File No. 2] will be GRANTED. This case will be REMANDED to the Chancery Court of Hamilton County, Tennessee, with each party to bear their own attorney's fees, costs, and expenses incurred by them in connection with the removal and remand. A separate remand order will enter.
ORDER
In accordance with the accompanying memorandum opinion, the plaintiffs' motion to remand [Court File No. 2] is GRANTED. This entire civil action is REMANDED to the Chancery Court of Hamilton County, Tennessee, pursuant to 28 U.S.C. § 1447(c) with each party to bear their own attorney's fees, costs, and expenses incurred by them in connection with the removal and remand.SO ORDERED.