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Bell v. Thornburg

United States Court of Appeals, Fifth Circuit

December 30, 2013

TAMMY BELMON BELL, Plaintiff-Appellant
v.
JON C. THORNBURG, Defendant-Appellee

Appeal from the United States District Court for the Western District of Louisiana

Before STEWART, Chief Judge, KING, and PRADO, Circuit Judges.

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"), Louisiana Revised Statutes §§ 23:301–03, 23:323. Thornburg removed Bell's suit to federal court under the federal officer removal statute, 28 U.S.C. § 1442(a)(1). Bell moved to have the case remanded to state court, while Thornburg moved for summary judgment. The district court determined that removal was proper, and that Thornburg should be granted summary judgment because he did not qualify as an "employer" under the LEDL. Bell appeals both determinations. Because removal was proper and Thornburg does not qualify as an employer under the LEDL, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

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, 28 U.S.C. § 1442(a)(1). After the removal order was granted, Thornburg moved for summary judgment, arguing that he had not employed twenty or more employees for twenty or more weeks, as is required to qualify as an "employer" under the LEDL, Louisiana Revised Statute § 23:302(2). Bell, meanwhile, moved to have the case remanded to state court, arguing that Thornburg was a private citizen not covered by 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 § 1442(a)(1) to Thornburg. Cromelin considered whether the Federal Tort Claims Act applied to bankruptcy trustees and held that a "trustee, like a receiver, is an officer of [the] court, appointed by the court, directed by the court, and paid by the court from the funds in the court. He is in no sense an agent or employee or officer of the United States." 177 F.2d at 277. Therefore Thornburg, the magistrate judge reasoned, could not invoke §1442(a)(1), which by its terms applies only to "[t]he 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." The magistrate judge also noted, however, that regardless of whether § 1442(a)(1) applied to Thornburg, removal under any part of § 1442 carries with it the additional requirement that the mover assert "a colorable claim of federal immunity or other federal defense." See Mesa v. California, 489 U.S. 121, 124, 129 (1989). Because Thornburg had provided nothing more than the conclusory statement in his notice of removal that "he has a valid and colorable federal defense to all claims made, " the magistrate judge determined that removal had been improper and recommended remanding the case to state court.

The district court disagreed with the magistrate judge's conclusion that removal was improper. The court clarified that even if § 1442(a)(1) covers only officers of the United States and those "acting under" them, § 1442(a)(3) provides the same removal privileges to officers of the courts of the United States. See 28 U.S.C. § 1442(a)(3) (offering the federal officer removal privilege to "[a]ny 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"). Thornburg, who, according to the district court, was an officer of the courts, was thus free to remove under the statute. With respect to the magistrate judge's determination that Thornburg had failed to meet the requirement that he aver a federal defense, the court relied on Thornburg's statement "that any alleged employment discrimination toward [Bell] was based on the 'peer review.'" The court concluded that because the peer review included the involvement of the presiding bankruptcy judge, Thornburg's statement sufficed as an averment of a colorable federal defense, and it denied Bell's remand request.

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


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