Opinion
No. C 02-03462 WHA
July 24, 2002
ORDER GRANTING MOTION FOR REMAND AND DENYING MOTION FOR FEES AND COSTS
INTRODUCTION
In this removed action seeking injunctive relief and a writ of mandate challenging an administrative order issued by a municipal commission, this order REMANDS the action back to the Superior Court of the State of California, City and County of San Francisco. Removal under Sections 1443(2) and 1441(b) of Title 28 of the United States Code was improper. Plaintiff's request for attorney's fees and costs under Section 1447(c) is DENIED.
STATEMENT
This state-court action was commenced on July 17, 2002. Plaintiff City and County of San Francisco, more specifically, the Elections Commission of the City and County of San Francisco (collectively "San Francisco") filed suit against defendants Civil Service Commission of the City and County of San Francisco and Tammy B. Haygood, the real party in interest. The suit sought a writ of mandate to set aside a reinstatement order issued by the Civil Service Commission invalidating Ms. Haygood's recent termination as the Director of Elections. An emergency stay of the reinstatement order was granted by the state court on July 15, subject to extension upon further argument at a hearing set for Friday, July 19.
The state-court complaint alleged the following: Ms. Haygood was a "probationary" employee when the Elections Commission removed her as the Director of Elections on April 22, 2002. Nonetheless, the Civil Service Commission found that Ms. Haygood was a "permanent" employee who could only be removed after notice of written charges, a hearing on those charges and a finding of "cause." Because Ms. Haygood was removed without these procedures (which need not be given to probationary employees), the Civil Service Commission ordered Ms. Haygood reinstated on July 15.
The state-court complaint alleged that the reinstatement order was invalid under local law. Specifically, San Francisco alleged (id. at ¶ 7):
On July 15, 2002, the CSC [Civil Service Commission] issued an order (the "Reinstatement Order") that purports to reinstate Ms. Haygood as the City's Director of Elections. The CSC ordered Ms. Haygood reinstated even though: (a) Ms. Haygood was a probationary employee as of April 22, 2002, and the CSC has no jurisdiction to review the termination of a probationary employee; (b) the enactment of Proposition E expressly gave the Elections Commission power to appoint a new Director of Elections and thus implicitly gave the Elections Commission power to remove the holdover Director; (c) the Reinstatement Order impermissibly infringes upon the authority of the Elections Commission to appoint the City's Director of Elections under Proposition E; (d) no provision of the City's Charter gives the CSC power to issue such an order; (e) even if the Elections Commission was required to give Ms. Haygood written notice, a hearing and a "for cause" determination before removing her from the position of Director of Elections, her remedies are limited to back pay, not reinstatement; and (f) Ms. Haygood has made no showing that monetary remedies are inadequate to compensate her for whatever monetary loss she might suffer between the date of the Reinstatement Order and the final determination of this controversy by the courts.
In support, San Francisco pointed to its charter, the applicable civil-service rules, municipal instruments and Proposition E, a reform initiative approved by the electorate to create the Elections Commission. Proposition E was passed in November 2001, after Ms. Haygood had been appointed the Director of Elections in August 2001.
On July 19, the state-court action was removed here under the general federal-question removal statute and the federal civil-rights removal statute. 28 U.S.C. § 1441 (b) and 1443(2). The notice of removal was filed a mere 45 minutes before a scheduled hearing in state court was to occur on San Francisco's application for provisional relief to extend the emergency stay of the reinstatement order pending further review. Defendants' removal notice, however, interrupted that process. The hearing was never held. The state court instantly lost jurisdiction by operation of law.
Prior to the removal of this state-court action, Ms. Haygood had filed a § 1983 action in federal court on July 17 against the individual members of the Elections Commission in their official capacity (Related Case No. C-02-03462 WHA). The § 1983 complaint asserted two causes of action, one under the Due Process Clause of the Fourteenth Amendment and another under the Equal Protection Clause of the Fourteenth Amendment. Specifically, Ms. Haygood alleged she was deprived of her property interest in her position as the Director of Elections without due process of law. Also, Ms. Haygood alleged she was removed as the Director of Elections "on the basis of a probationary condition that was not imposed equally on previous Directors of Elections" (Compl. ¶ 40). This remand order will in no way affect the Court's jurisdiction over the § 1983 action.
As to removal under Section 1443(2), the notice of removal alleged (¶ 5):
[T]he City [San Francisco] seeks to use this lawsuit to deprive Ms. Haygood of her property interest in continued employment without due process of law. Perry v. Sindermann, 408 U.S. 593 (1972); Roberts v. College of Desert, 870 F.2d 1411, 1416 (9th Cir. 1988). Since the City asks the state court to apply state law in a manner that would deprive Ms. Haygood of her federally guaranteed Constitutional Due Process and Equal Protection Clause rights, this case should be removed pursuant to the "refusal clause." 28 U.S.C. § 1443 (2); Greenberg v. Veteran, 889 F.2d 418, 421-422 (2d Cir. 1989).
For removal under Section 1441(b), the notice of removal alleged (¶ 6):
To wit, as discussed above, granting the City's requested relief would necessarily violate Ms. Haygood's federally guaranteed Due Process and Equal Protection Clause rights. Thus, resolution of the City's claim will necessarily require resolution of a very substantial question of federal law.
The case arrived in this federal district court on the same day. A hearing began at 2:00 p.m. that afternoon. The Court expressed concern over the correctness of the removal and questioned whether it had jurisdiction. An expedited briefing schedule was set on that issue. The stay was extended by one business day to Monday, July 22 (at 5:00 p.m.), subject to a further extension upon review of the parties' submissions to date. On Monday, July 22, the stay was extended for two additional days by written order.
The Court has now considered the expedited briefing and the entirety of the record. This order remands the action to state court and denies San Francisco's request for attorney's fees and costs.
ANALYSIS
The case boils down to this: A municipal commission held under local law that Ms. Haygood was a permanent rather than a probationary employee. In the nature of an appeal, the losing party then sought judicial review in the state court. The main issue to be reviewed was the permanent-versus-probationary question. That inquiry, being one solely of local law, could not possibly be governed by federal law in any respect. Nonetheless, defendants characterize the state-court complaint as one to force the commission to act in derogation of Ms. Haygood's federal constitutional rights. This is not so. All the state-court complaint sought was a review of the correctness of the tenure question under local law. It is true that Ms. Haygood's federal due-process claim would hang on that question, i.e., her federal claim must presuppose that she was a permanent employee. Still, the threshold inquiry must be whether she was a permanent employee under local law — and federal law looks to local law for that answer. Board of Regents v. Roth, 408 U.S. 564, 577 (1972); Roberts v. College of the Desert, 870 F.2d 1411, 1416 (9th Cir. 1989). Thus, in no way did the state-court complaint seek to force the commission to disregard anyone's federal civil rights. All it sought was to overturn the agency's view on a local-law conclusion.
* * *
Turning to the details, this action was purportedly removed under Section 1443(2), the federal civil-rights removal statute, and Section 1441(b), the general federal-question removal statute. For the reasons stated below, neither was a viable basis for removal.
1. Removal Under Section 1443(2).
The federal civil-rights removal statute, 28 U.S.C. § 1443, states (emphasis added):
Any of the following civil actions or criminal prosecutions, commenced in a State court may be removed by the defendant to the district court of the United States for the district and division embracing the place wherein it is pending:
(1) Against any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof;
(2) 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.
While the statute allows removing federal civil-rights actions from state to federal court in various situations, defendants' removal under Section 1443 was purportedly based solely on the "refusal to act" clause in subsection two. By way of background, subsection one of Section 1443 permits a defendant to remove when he or she is denied or cannot enforce in state court a right secured by a federal "equal civil rights" law. See State of Georgia v. Rachel, 384 U.S. 780, 788 (1966). The "color of authority" clause of subsection two permits a defendant to remove when sued for acting under the color of law derived from a federal "equal rights" law. Removal under the "color of authority" clause is available only to "federal officers or agents and those authorized to act with or for them in affirmatively executing duties under federal law providing for equal civil rights." Greenwood v. Peacock, 384 U.S. 808, 824 (1966).
Within Section 1443, subsection one uses the term "equal civil rights" while subsection two uses the term "equal rights." Decisional law, however, has interpreted the two terms to have the same meaning. See Appalachian Volunteers, Inc. v. Clark, 432 F.2d 530, 535 n. 3 (6th Cir. 1970), and Bridgeport Educ. Ass'n v. Zinner, 415 F. Supp. 715, 722 (D. Conn. 1976).
On the "refusal to act" clause in subsection two, the clause here invoked, the Supreme Court has stated:
It is clear that removal under that language is available only to state officers. The phrase was added by the House of Representatives as an amendment to the Senate bill during the debates on the Civil Rights Act of 1866. In reporting the House bill, Representative Wilson, the chairman of the House Judiciary Committee and the floor manager of the bill said, "I will state that this amendment is intended to enable State officers, who shall refuse to enforce State laws discriminating in reference to [the rights created by § 1 of the bill] on account of race or color, to remove their cases to the United States courts when prosecuted for refusing to enforce those laws." Cong. Globe, 39th Cong., 1st Sess., 1367.
Ibid. n. 22. This clause affords the privilege of removal to "state officers, and those acting with or for them including local and municipal officials." White v. Wellington, 627 F.2d 582, 585 (2d Cir. 1980). This order assumes arguendo that defendants (more precisely, the Civil Service Commission) are "state officers." Nonetheless, removal under Section 1443(2) was improper for three independent reasons, now presented.
A. No Failure to Act.
First, the "refusal to act" clause is unavailable where the removing party's action, rather than its inaction, is the subject of the state-court suit. As stated, removal is appropriate where a state official is sued in state court "for refusing to do any act on the ground that [state law] would be inconsistent with [any law providing for equal rights]." 28 U.S.C. § 1443 (2). By its express language, the remand suit must challenge a failure to act or enforce state, law (by the defendant). Detroit Police Lieutenants and Sergeants Ass'n v. City of Detroit, 597 F.2d 566, 568 (6th Cir. 1979) ("We believe that this provision of the statute was designed to protect state officers from being penalized for failing to enforce discriminatory state laws or policies by providing a federal forum in which to litigate these issues").
Here, however, the remand suit did not challenge any refusal by the Civil Service Commission to enforce the law. Instead, the remand suit challenged an affirmative order by the commission. Specifically, the state-court complaint alleged (Compl. ¶¶ 1, 2) (emphasis added):
1. Real Party in Interest Tammy Haygood was a probationary employee when the San Francisco Elections Commission removed her from the position of Director of Elections on April 22, 2002. Nevertheless, Respondent Civil-Service Commission of the City and County of San Francisco ("CSC") asserts that Ms. Haygood was instead a permanent employee who could only be removed after notice of written charges, a hearing on those charges and a finding of "cause." Because Ms. Haygood was removed from the Director of Elections position without these procedures (which need not be given to probationary employees), the CSC ordered Ms. Haygood reinstated on July 15, 2002.
2. The City and County of San Francisco has brought this Petition to obtain judicial review of this order, which is legally unsound for numerous reasons. . . .
Clearly, the challenge at issue in no way involved a failure to act. To the contrary, it concerned an affirmative order. See Massachusetts Council of Constr. Employers, Inc. v. White, 495 F. Supp. 220, 222 (D. Mass. 1980) ("At any rate, the `refusal' clause is unavailable in this case, where the defendants' actions, rather than their inaction, are being challenged"). This alone is dispositive.
B. No Colorable Conflict Between State and Federal Law.
Second, defendants have not demonstrated a "colorable conflict" between state and federal law. Even if there had somehow been a "refusal to act," defendants would still have to show a "colorable conflict between state and federal law leading to [his or her] refusal to follow plaintiff's interpretation of state law because of a good faith belief that to do so would violate federal law." Alonzo v. City of Corpus Christi, 68 F.3d 944, 946 (5th Cir. 1995). If no colorable conflict exists, removal is improper. New-Texan Inc. v. City of Garland, 814 F.2d 216, 218 (5th Cir. 1987). For example, in White, supra, 627 F.2d at 585, the defendants removed under the "refusal to act" clause after they were sued in state court for failing to fully apply the competitive promotion examination for police officers, as required by local law. The defendants removed on the grounds that applying the complete scoring system, as previously practiced, would be inconsistent with Title VII (since the EEOC had found probable cause that these promotion practices had resulted in racial discrimination). The Second Circuit held that the defendants had demonstrated a colorable conflict between state and federal law. It concluded:
[W]e believe that appellants in their petition for removal do show a colorable claim that their conduct, if violative of state law, was justified by their federal statutory duty to avoid racial discrimination in hiring or promotion.
Id. at 586.
Here, however, the notice of removal alleged (¶ 5):
[T]he City [San Francisco] seeks to use this lawsuit to deprive Ms. Haygood of her property interest in continued employment without due process of law. Perry v. Sindermann, 408 U.S. 593 (1972); Roberts v. College of Desert, 870 F.2d 1411, 1416 (9th Cir. 1988). Since the City asks the state court to apply state law in a manner that would deprive Ms. Haygood of her federally guaranteed Constitutional Due Process and Equal Protection Clause rights, this case should be removed pursuant to the "refusal clause." 28 U.S.C. § 1443 (2); Greenberg v. Veteran, 889 F.2d 418, 421-422 (2d Cir. 1989).
Here, however, the Civil Service Commission was not refusing to enforce state law because it would be inconsistent with a federal law. The fundamental dispute between San Francisco and the Civil Service Commission surrounds their conflicting interpretations of the San Francisco Charter and other applicable municipal instruments, namely whether Ms. Haygood was a "probationary" employee versus a "permanent" employee under local law. Only if she had been a permanent employee could she have had tenure sufficient to create a protected property interest that would have triggered any due-process hearing rights under Perry v. Sindermann, 408 U.S. 593, 601-02 (1972). The state-court complaint simply challenged the local-law conclusion that Ms. Haygood was a permanent employee.
Defendants argue a "true conflict" exists between state and federal law. Specifically, they claim (Opp. 6):
A favorable ruling for the City in the state court action would place the Commission in the untenable position of having to decide whether to comply with the state court order, and risk being sued for violation of federal law, or ignoring the state court order and risk being held in contempt. Thus, a true conflict exists between plaintiff City's interpretation of state law and federal law, making Refusal Clause removal appropriate.
Again, there is no colorable conflict. Again, If San Francisco's interpretation of local law is sustained on judicial review, Ms. Haygood would be a "probationary" employee. Any constitutional claim for an alleged unlawful termination due to lack of notice, hearing and finding of cause would disappear. The Civil Service Commission would not be exposed to suit for violation of federal law. The United States Supreme Court has made clear that no constitutional claim can arise until it is first determined under state law that the employee was tenured. Roth, supra, 408 U.S. at 577.
Contrary to defendant' argument, Greenberg v. Veteran, 889 F.2d 418, 421-22 (2d Cir. 1989), does not stand for the proposition that if a plaintiff asks a state court to apply state law in a manner that would deprive a defendant of his or her due process and equal protection rights, the case is removable. In Greenberg, the Second Circuit held that the defendants were entitled to removal under the "refusal to act" clause since a colorable conflict between state and federal law existed. The defendants were town officials who refused to grant a petition to incorporate a village under New York Village Law on the ground that to do so would violate the equal protection rights of minority residents. In response, the incorporation petitioners brought suit in state court seeking judicial review of the denial. The Second Circuit stated removal was proper as the facts alleged within the removal petition presented "a classic case" for removal under the "refusal to act" clause. Id. 419-21.
C. No Equal-Rights Challenge.
Third, assuming arguendo that the Civil Service Commission "refused to act" and that a "colorable conflict" existed between San Francisco's interpretation of its charter and federal law, such inconsistency would still not involve any federal law on racial equality, as required under Section 1443(2). So there is yet a third flaw in defendants' removal argument. The law insists that the colorable conflict involve federal "racial equality" laws. Appalachian Volunteers, supra, 432 F.2d at 535. The "refusal clause may be invoked when the removing defendants make a colorable claim that they are being sued for not acting pursuant to a state law, which, though facially neutral, would produce or perpetuate a racially discriminatory practice as applied." Sexon v. Servaas, 33 F.3d 799, 803 (7th Cir. 1994). "`When the removal statute speaks of `any law providing for equal rights,' it refers to those laws that are couched in terms of equality, such as the historic and the recent equal rights statutes, as distinguished from laws, of which the due process clause and 42 U.S.C. § 1983 are sufficient examples, that confer equal rights in the sense, vital to our way of life, of bestowing them upon all.'" Rachel, supra, 384 U.S. at 793 (quoting People of State of New York v. Galaminson, 342 F.2d 255, 271 (2d Cir. 1965)).
Here, however, the constitutional claim is and has been that Ms. Haygood was tenured and thus entitled to notice, hearing and a finding of cause before she could be terminated. The notice of removal thus asserts a due-process claim. Due process applies to all regardless of race. It is not a "racial-equality" right. In the public controversy surrounding Ms. Haygood's termination, of course, there have been charges of race discrimination. But this order must focus on the asserted basis of removal in the notice of removal. The notice of removal makes no race-based claim. In this connection, it is noteworthy that even in Ms. Haygood's separately-filed action under 42 U.S.C. § 1983 (Civil Action No. C-02-03433 WHA) there is no claim of race discrimination. Rather, as stated, that suit asserts only that Ms. Haygood was a permanent and tenured employee and thereby was constitutionally entitled to notice, hearing and a finding of cause before any termination. In short, a further statutory requirement is missing from the notice of removal.
This order recognizes that the notice of removal referred to both the Due Process Clause and the Equal Protection Clause. It did this, however, only in connection with an alleged deprivation of a property interest in continued employment. Nowhere in the notice of removal is there any suggestion of race discrimination.
* * *
For any and all of the foregoing three reasons, removal under Section 1443(2) was improper.
2. Removal Under Section 1441(b).
As for the alleged alternative basis for removal, the general federal-question removal
statute, 28 U.S.C. § 1441 (b), provides (emphasis added):
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. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.
In order for a complaint to state a claim "arising under" federal law, it must be clear from the face of the plaintiff's well-pleaded complaint that there is federal question jurisdiction. Taylor v. Anderson, 234 U.S. 74, 75-76 (1914). Federal-question jurisdiction exists if "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." Franchise Tax Board of the State of California v. Constr. Laborers Vacation Trust for So. California, 463 U.S. 1, 27-28 (1983).
The notice of removal alleged (¶ 6):
To wit, as discussed above, granting the City's requested relief would necessarily violate Ms. Haygood's federally guaranteed Due Process and Equal Protection Clause rights. Thus, resolution of the City's claim will necessarily require resolution of a very substantial question of federal law.
This is incorrect. Clearly, resolution of Ms. Haygood's constitutional rights vis-a-vis the San Francisco Charter is not a necessary element to the well-pleaded, state-law claim in the removed state-court action. San Francisco sought a writ of mandate requiring the Civil Service Commission to set aside the reinstatement order (Compl. ¶ 33). Specifically, the state-court complaint alleged (id. at ¶ 7):
On July 15, 2002, the CSC [Civil Service Commission] issued an order (the "Reinstatement Order") that purports to reinstate Ms. Haygood as the City's Director of Elections. The CSC ordered Ms. Haygood reinstated even though: (a) Ms. Haygood was a probationary employee as of April 22, 2002, and the CSC has no jurisdiction to review the termination of a probationary employee; (b) the enactment of Proposition E expressly gave the Elections Commission power to appoint a new Director of Elections and thus implicitly gave the Elections Commission power to remove the holdover Director; (c) the Reinstatement Order impermissibly infringes upon the authority of the Elections Commission to appoint the City's Director of Elections under Proposition E; (d) no provision of the City's Charter gives the CSC power to issue such an order; (e) even if the Elections Commission was required to give Ms. Haygood written notice, a hearing and a "for cause" determination before removing her from the position of Director of Elections, her remedies are limited to back pay, not reinstatement; and (f) Ms. Haygood has made no showing that monetary remedies are inadequate to compensate her for whatever monetary loss she might suffer between the date of the Reinstatement Order and the final determination of this controversy by the courts.
Significantly, the legality of the reinstatement order — which is San Francisco's sole challenge in the removed state-court action — does not require the resolution of any substantial questions of federal law, especially ones concerning Ms. Haygood's constitutional rights. As the excerpt above demonstrates, the grounds for allegedly attacking the reinstatement order all pertain solely to questions of state law, namely the San Francisco Charter and the effect of Proposition E. Federal-question jurisdiction is "unavailable unless it appears that some substantial disputed question of federal law is a necessary element of one of the well-pleaded state claims." Franchise Tax, supra, 463 U.S. at 13. If Ms. Haygood was only a probationary employee under state and local law, then there cannot be any "property" right to serve as the predicate for any due-process claim.
* * *
San Francisco's request for attorney's fees and costs is denied. San Francisco did not submit a declaration to substantiate any reasonable amount. Time is of the essence in this case. There is no time to be haggling over dollar amounts, especially if San Francisco would be asking for yet more stays of the reinstatement order. Rather, this case will be remanded forthwith to the state court so that the process may resume where it stopped last Friday morning.
CONCLUSION
This action is immediately REMANDED to the Superior Court of the State of California, City and County of San Francisco. The stay already in effect shall remain in effect until Friday, July 26, 2002, at 5:00 p.m., in order to allow time for the state court to resume consideration of provisional relief. The state court, of course, may terminate this Court's stay earlier or extend it based on its own determination. Plaintiff's request for fees and costs is DENIED.
IT IS SO ORDERED.