Summary
issuing mandamus to remand improperly removed action to Puerto Rico court
Summary of this case from Rossello-Gonzalez v. Calderon-SerraOpinion
No. 84-1802.
Argued October 11, 1984.
Decided October 23, 1984.
Marcos A. Ramirez Lavandero, Hato Rey, P.R., with whom Marcos A. Ramirez and Ramirez Ramirez, Hato Rey, P.R., was on brief, for plaintiff, appellant.
Philip A. Lacovara, Washington, D.C., with whom Geoffrey F. Aronow, Roger P. Fendrich, William H. Voth, Hughes, Hubbard Reed, Washington, D.C., and Amancio Arias Cerstero, Santurce, P.R., were on brief, for defendant, appellee.
Appeal from the United States District Court for the District of Puerto Rico.
Before CAMPBELL, Chief Judge, and COFFIN and BREYER, Circuit Judges.
The Senate of Puerto Rico asks us to issue a writ of mandamus requiring the federal district court to return to the Commonwealth courts the Senate's "subpoena enforcement action" against the Commonwealth's Governor. The Senate issued the subpoena in question in April 1984, in connection with its investigation of events at Cerro Maravilla. In May, the Governor told the Senate he would not comply. In August, the Senate (through its President) asked the Commonwealth's Superior Court to issue an order (under the legal authority of Puerto Rico Political Code, § 34-A, 2 L.P.R.A. § 154a) requiring the Governor to comply with the subpoena. The Commonwealth court issued the order. The Governor removed the case to the United States District Court for the District of Puerto Rico. See 28 U.S.C. § 1441. That federal court refused the Senate's request for remand. 594 F. Supp. 1390. See 28 U.S.C. § 1447(c). The federal court stayed the Commonwealth court's compliance order pending further federal proceedings. The Senate now appeals and in the alternative asks for a writ of mandamus requiring a remand. Treating the appeal as a request for a writ, and for the reasons given below, we grant the writ of mandamus that the Senate seeks.
I
The Governor sought to remove this case to federal court under the authority of 28 U.S.C. § 1441. That provision allows removal of a case presenting "a claim or right arising under the Constitution, treaties or laws of the United States . . . ." The Supreme Court of the United States has made clear that, in deciding (for removal purposes) whether a case presents a federal "claim or right," a court is to ask whether the plaintiff's claim to relief rests upon a federal right, and the court is to look only to plaintiff's complaint to find the answer. Gully v. First National Bank, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936) ("right or immunity created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff's cause of action"); Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, ___, 103 S.Ct. 2841, 2847, 77 L.Ed.2d 420 (1983) ("defendant may not remove a case to federal court unless the plaintiff's complaint established that the case 'arises under' federal law"); Taylor v. Anderson, 234 U.S. 74, 75-76, 34 S.Ct. 724, 724, 58 L.Ed. 1218 (1914) ("whether a case is one arising under [federal] . . . law . . . must be determined from what necessarily appears in the plaintiff's statement of his own claim in the bill or declaration"); Charles D. Bonanno Linen Service, Inc. v. McCarthy, 708 F.2d 1, 3 (1st Cir.) (case law requires that the "elements of the federal claim appear on the face of the state court complaint, without reference to other documents"), cert. denied, ___ U.S. ___, 104 S.Ct. 346, 78 L.Ed.2d 312 (1983). In this instance, the Senate's state court "complaint" (a petition for enforcement) makes no reference to federal law; it bases its right to enforcement of the subpoena entirely upon the law of the Commonwealth of Puerto Rico, namely, Political Code § 34-A. Thus, under Franchise Tax Board, Gully, Bonanno, and a host of other cases, § 1441 does not authorize removal of the case to federal court. ( See Appendix for text of the Complaint.)
The Governor makes a two-step argument in an effort to escape the authority of these cases. First, he claims that the Senate's court action involves a federal issue, namely, whether enforcement of the subpoena would violate a federal requirement that Puerto Rico's Constitution provide "a republican form of government." 48 U.S.C. § 731c. He recognizes, however, that this claim is insufficient, for the simple involvement of a federal issue in a case does not authorize removal if that involvement arises by way of a federal defense. Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. at ___, 103 S.Ct. at 2847. Justice Cardozo pointed out in Gully, not only that the federal controversy "must be disclosed on the face of the complaint, unaided by the answer or petition for removal" but also that not even "the complaint itself" provides a basis for jurisdiction "in so far as it goes beyond a statement of the plaintiff's cause of action and anticipates or replies to a probable defense." 299 U.S. at 113, 57 S.Ct. at 98 (emphasis added). And the Supreme Court recently reiterated that "a federal court does not have original jurisdiction over a case in which the complaint presents a state-law cause of action, but also asserts . . . that a federal defense the defendant may raise is not sufficient to defeat the claim." Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. at ___, 103 S.Ct. at 2846-47 (emphasis added). See Taylor v. Anderson, supra (federal claim must be determined from complaint "unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose"). Thus, the Governor adds a second step to his argument. He says that the federal argument is so important that it (or its denial) is an inextricable part of the plaintiff's affirmative case. Although the district court accepted this argument, we do not find it convincing for several reasons.
In the first place, a natural reading of the pleadings in this case suggests that the "republican form of government" argument is at best a defense. The plaintiff seeks a Commonwealth court 'subpoena enforcement' order, the right to which (it says) is granted by Commonwealth law. The defendant argues that if Commonwealth law provides such a right, it unconstitutionally conflicts with a federal statute. The defendant adds that the Senate bears the burden of disproving this federal contention. But burdens of proof are beside the point, for the simple fact is that the federal issue would not appear in the case unless defendant chose to assert it. That fact, in this context, militates strongly in favor of calling the issue a 'defense' regardless of who bears whatever proof burdens may be relevant. (Compare the insanity defense, which a court considers only if defendant raises the matter, but which, once raised, the prosecutor has the burden of disproving. Davis v. United States, 160 U.S. 469, 486-88, 16 S.Ct. 353, 357-58, 40 L.Ed. 499 (1895).)
In the second place, to view this defense as part of the plaintiff's claim runs counter to Supreme Court authority. We know that there are unusual cases in which a federal court will look beyond the literal words of a plaintiff's complaint, preventing him from defeating "removal by omitting to plead necessary federal questions." See Avco Corp. v. Aero Lodge No. 735, 376 F.2d 337, 339-40 (6th Cir. 1967), aff'd, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968); Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. at ___, 103 S.Ct. at 2852. But these cases have focused on such matters as state labor law claims — brought in an area that federal labor law totally occupied. Thus, the Supreme Court has written that
. . . if a federal cause of action completely preempts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily 'arises under' federal law.
Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. at ___, 103 S.Ct. at 2854. Yet, while writing these very words about labor law cases, the Supreme Court held that a state law tax-related claim to money held by a federally regulated pension fund could not be removed, even though the complaint itself revealed that the sole issue in the case was whether federal pension law preempted the state law on which the plaintiff rested its claim. The Supreme Court held that the plaintiff (a California state tax board) asserted a claim under state law. While plaintiff's complaint raised the federal issue, it did so, says the court, by way of anticipating a defense. Id. ___, 103 S.Ct. at 2854. There is no more reason here than in Franchise Tax Board for viewing the "federal issue" as if it formed part of the plaintiff's cause of action, rather than as a defense.
In fact, Franchise Tax Board is a far stronger case than this one for viewing the "federal defense" as if it formed part of a plaintiff's complaint. The federal claim here is weak on the merits. The courts have read the analogous "republican form of government" clause of the federal constitution as typically raising 'non-justiciable' issues suitable for resolution by the political branches of government, not the courts. See, e.g., In re Duncan, 139 U.S. 449, 11 S.Ct. 573, 35 L.Ed. 219 (1891); Luther v. Borden, 7 How. (48 U.S.) 1, 12 L.Ed. 581 (1849). Moreover, unlike Franchise Tax Board, the complaint here fails to reveal the existence of this federal defense. Not even the Governor's lengthy response to the Senate (attached to the Senate's Commonwealth court complaint as an appendix) mentions the federal issue; it refers only to an 'executive privilege' defense based upon Commonwealth law; and, it mentions federal cases only by way of analogy. How can one claim that federal issues permeate a complaint — or occupy the field — when the issues are often held non-justiciable; when the complaint does not mention them; and when even the initial 'defense' statement rests upon Commonwealth, rather than federal, law?
Under these circumstances, to find the federal statutory issue inextricably part of plaintiff's 'cause of action' (rather than a defense) would work something of a jurisdictional revolution. After all, local land condemnation cases or zoning cases often involve a potential federal Compensation Clause defense; public nuisance abatement actions may encompass federal Due Process issues; local subpoena cases may involve a host of federal statutory or constitutional objections. Congress constitutionally might have allowed removal of these or many other local cases involving federal defenses, but it did not do so. Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. at ___, 103 S.Ct. at 2847 n. 9. We must respect that congressional judgment. If respondents are arguing that there is something special about Puerto Rico that makes such local cases 'federal' in nature, the authoritative judicial response is that of Chief Judge Magruder to an analogous argument: "It simply can't be so." Figueroa v. People of Puerto Rico, 232 F.2d 615, 620 (1st Cir. 1956) (the fact that Puerto Rico's Constitution's jury trial right was promulgated under, and subject to limitations of, federal Public Law 600, does not make the interpretation of that right a question of federal law).
Finally, the authority on which the district court relied for its conclusion is not on point. The court cited the following language from Franchise Tax Board:
Congress has given the lower federal courts jurisdiction to hear . . . by removal . . ., only those cases in which a well pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law.
463 U.S. at ___, 103 S.Ct. at 2856. Once one reads this language with due emphasis upon the words "well pleaded complaint," and in light of the court's prior statement in the opinion that federal defenses do not count, whatever appearance of support this language seems to give simply evaporates. The district court also relies upon Smith v. Kansas City Title Trust Co., 255 U.S. 180, 41 S.Ct. 243, 65 L.Ed. 577 (1921). But in that case the thrust of plaintiff's claim (brought in federal court) was that defendants' proposed action was unlawful because an authorizing federal statute was unconstitutional; plaintiff's complaint revealed the federal basis for its claim on its face.
We conclude that the district court committed jurisdictional error in retaining this case. And, despite respondent's complex, and often heroic, arguments to the contrary, the error is a fairly obvious and serious one.
II
We also conclude that this is an appropriate case for exercise of "the discretionary, and sparingly used, writ of mandamus." In re La Providencia Development Corp., 406 F.2d 251, 253 (1st Cir. 1969). We realize that the underlying investigation out of which this appellate proceeding arises is freighted with intense political and emotional overtones. We can make here no attempt to assess the propriety of the actions and procedures of either party. But of overarching importance, far outlasting the tempests of the present controversies, is the importance of both Commonwealth and federal courts adhering to their proper jurisdiction. Here we have found the district court to have been persuaded to misunderstand the clear meaning of the removal statute as expounded in a long line of Supreme Court (and circuit court) cases, and to remove a case to federal court that did not fall within 28 U.S.C. § 1441. The analysis leading to this result, if allowed to stand, would apply equally to a host of other cases, thus needlessly interfering with Commonwealth legislative, executive, and court proceedings, and undermining basic principles of comity. Those principles suggest that such unauthorized intrusion should be speedily corrected. Id. Finally, the authority of the Senate to conduct the investigation at issue expires with the expiration of the session itself on December 31, 1984. Thus, even a short delay while the district court decides the merits threatens to deprive the Senate of whatever legal remedy the law may give it. This combination of jurisdictional error, upon an important matter of federal court/Commonwealth relations, with the possibility of harm through further delay, warrants issuance of the writ.
We have read Ex parte Harding, 219 U.S. 363, 31 S.Ct. 324, 55 L.Ed. 252 (1911), a case that the Governor cites for the proposition that the courts of appeals cannot issue mandamus to force remand of a case wrongly removed. But, Harding does not hold this. The Harding Court found that mandamus issues only in exceptional circumstances. And this case presents exceptional circumstances. Among the factors mentioned above, we stress the need here to exercise this circuit's supervisory powers in order to maintain sound and legally correct relations between the federal courts and the Commonwealth government. See In re Justices of the Supreme Court of Puerto Rico, 695 F.2d 17, 25 (1st Cir. 1982); cf. In re La Providencia Development Corp., supra.
III
We therefore conclude that the writ should issue vacating the orders entered by the district court in this case and remanding the matter forthwith to the Superior Court of Puerto Rico. While we do not believe that this order should be stayed, we withhold issuance of the writ for 48 hours after the issuance of this opinion to allow the respondent to seek a stay from the Supreme Court.
In deciding this case the way we have, we wish to make clear that we have made no judgment about the propriety of the procedures followed in issuing the subpoena in this case, nor do we express any view about the legal merits of the Senate's claim of right to a subpoena, or about the legal merits of a defense based on executive privilege. Our judgment here concerns only the technical legal question of the right to removal of this case to a federal court. No other matter is before us.
We note that we have issued this opinion "per curiam." While this form of opinion often is used to dispose of minor matters, it can also be used to reflect the fact that each judge of the panel believes the matter at issue is significant and agrees in detail with the opinion's reasoning and conclusions. We use the form here for the latter reason.
A writ of mandamus shall be issued requiring the federal district court to vacate the orders in this case and to remand this case to the Superior Court of the Commonwealth of Puerto Rico.