United States Court of Appeals

For the Eighth Circuit 

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No. 18-2892

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Brendan Holbein

 Plaintiff - Appellant

v.

Baxter Chrysler Jeep, Inc.; TAW Enterprises, Inc., doing business as Baxter 

Chrysler Dodge Jeep Ram of Bellevue

 Defendants - Appellees

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Appeal from United States District Court 

for the District of Nebraska - Omaha

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Submitted: November 14, 2019

 Filed: January 29, 2020 

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Before GRUENDER, KELLY, and ERICKSON, Circuit Judges. 

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GRUENDER, Circuit Judge. 

Brendan Holbein appeals the district court’s dismissal of his amended 

complaint against TAW Enterprises, Inc. Because we conclude that the district court 

lacked subject-matter jurisdiction over this action, we vacate the dismissal and 

remand with instructions to the district court to remand this case to state court. 
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I.

In the fall of 2015, Holbein accepted a position as General Manager of TAW 

Enterprises’ Bellevue, Nebraska automobile dealership. In June 2016, TAW 

Enterprises’ Finance Director informed Holbein that customer financial information 

in her possession had been stolen from her. Instead of alerting the customers that 

their financial information had been lost, however, the Finance Director allegedly 

“devised a clever method of re-obtaining the financial information from [the] 

customers without disclosing the breach of privacy.” Over the next several months, 

Holbein attempted to advise his superiors of this issue and of their alleged reporting 

obligations under the federal Gramm-Leach-Bliley Act, Pub. L. No. 106-102, 113 

Stat. 1338 (1999) (codified as amended in scattered sections of 12 U.S.C., 15 U.S.C., 

16 U.S.C., 18 U.S.C., and 29 U.S.C.) (the “Act”), and its implementing regulations. 

In October 2016, TAW Enterprises demoted Holbein and cut his pay by sixty-five 

percent. He believed that this demotion “was the result of his insistence upon 

compliance with the Act.” 

Holbein sued in Nebraska state court, alleging in the operative amended 

complaint that TAW Enterprises retaliated against him in contravention of public 

policy established by the Act and breached its employment contract with him.1

 

TAW Enterprises removed the case to federal court, alleging federal question 

jurisdiction. Holbein did not challenge removal. TAW Enterprises then moved to 

dismiss the action. The district court dismissed the amended complaint with 

prejudice, reasoning in pertinent part that Holbein’s efforts to advise his superiors 

about the Finance Director’s misconduct and their reporting obligations under the 

Act did not implicate a “public policy” recognized under Nebraska law to protect 

him from at-will employment termination. Holbein appeals. 

1

Although Holbein also named “Baxter Chrysler Jeep, Inc.” in the amended 

complaint, he only served TAW Enterprises, so only TAW Enterprises is a party in 

this action.
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II.

Before addressing the merits of Holbein’s appeal, we must assure ourselves 

that we have subject-matter jurisdiction over this action. See Webb ex rel. K.S. v. 

Smith, 936 F.3d 808, 814 (8th Cir. 2019). “We review the question of subject matter 

jurisdiction de novo.” United States v. Jacobs, 638 F.3d 567, 568 (8th Cir. 2011). 

In his opening brief, Holbein stated that the district court had diversity 

jurisdiction over this action. TAW Enterprises responded that we may exercise 

either diversity or federal question jurisdiction even though it removed the case on 

federal question grounds. At oral argument, Holbein then denied that we could 

exercise either federal question or diversity jurisdiction.

TAW Enterprises acknowledges that it could not have removed the case based 

on diversity jurisdiction because of the forum-defendant rule. This rule prohibits 

removal on the basis of diversity jurisdiction “if any of the parties in interest properly 

joined and served as defendants is a citizen of the State in which such action is 

brought.” 28 U.S.C. § 1441(b)(2). TAW Enterprises is a Nebraska corporation with 

its principal place of business in Nebraska, so it could not have removed this 

Nebraska state-court action on diversity jurisdiction grounds. 

TAW Enterprises argues that we may nevertheless exercise diversity 

jurisdiction under Grubbs v. General Electric Credit Corp., 405 U.S. 699 (1972). In 

Grubbs, the Supreme Court explained that when a case is removed improperly but 

proceeds “without objection” to a judgment on the merits in federal district court, 

“the issue in subsequent proceedings on appeal is not whether the case was properly 

removed, but whether the federal district court would have had original jurisdiction 

of the case had it been filed in that court.” Id. at 702. Our sister circuits have read 

this to mean that violation of the forum-defendant rule is a procedural matter that 

may be waived rather than a jurisdictional matter that cannot. See, e.g., Samaan v. 

St. Joseph Hosp., 670 F.3d 21, 28 (1st Cir. 2012) (holding that improper removal in 

violation of the forum-defendant rule is a nonjurisdictional “procedural defect that 
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is subject to waiver”); In re 1994 Exxon Chem. Fire, 558 F.3d 378, 394 (5th Cir. 

2009) (reading Grubbs as suggesting “that the forum-defendant rule does not impose 

an independent jurisdictional requirement”); Lively v. Wild Oats Mkts., Inc., 456 

F.3d 933, 939, 942 (9th Cir. 2006) (holding that the forum-defendant rule is “nonjurisdictional”); Korea Exch. Bank, N.Y. Branch v. Trackwise Sales Corp., 66 F.3d 

46, 50-51 (3d Cir. 1995) (holding that violation of the forum-defendant rule “does 

not deprive a federal court of subject matter jurisdiction” according to Grubbs, “the 

conclusions reached by almost every other court of appeals that has addressed the 

issue,” and “several leading commentators” such as Moore’s Federal Practice). 

We, however, have held that violation of the forum-defendant rule is a 

“jurisdictional defect” rather than “‘a mere procedural irregularity capable of being 

waived.’” Horton v. Conklin, 431 F.3d 602, 605 (8th Cir. 2005) (quoting Hurt v. 

Dow Chem. Co., 963 F.2d 1142, 1146 (8th Cir. 1992)). It may be that “the 

overwhelming weight of authority” is “on the nonjurisdictional side of the debate.”

See Lively, 456 F.3d at 940 (internal quotation marks omitted). But we are bound 

by Horton unless or until “that case is overruled by th[is] Court sitting en banc.” See 

United States v. Manning, 786 F.3d 684, 686 (8th Cir. 2015). Under Horton, we are 

prohibited from exercising diversity jurisdiction over this action because removal on 

diversity grounds would have violated the forum-defendant rule.

We therefore may exercise jurisdiction here only if the amended complaint 

presents a sufficient federal question on its face. See Luecke v. Schnucks Mkts., Inc., 

85 F.3d 356, 358 (8th Cir. 1996) (“For federal question jurisdiction, the federal 

question generally must appear on the face of the complaint.”); see also In re 

Wireless Tel. Fed. Cost Recovery Fees Litig., 396 F.3d 922, 928-29 (8th Cir. 2005) 

(“[W]here a plaintiff has filed an amended complaint, federal courts must resolve 

questions of subject matter jurisdiction by examining the face of the amended 

complaint.”). We focus on the retaliation claim, as Holbein did not plead that the 

breach-of-contract claim implicated federal law in any way. And we look at the 

substance rather than the form of the amended complaint to determine if it 

sufficiently raises a federal question. See Stanturf v. Sipes, 335 F.2d 224, 229 (8th 
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Cir. 1964) (“[A] federal question must exist not in mere form but in substance, and 

not in mere assertion, but in essence and effect.” (internal quotation marks omitted)). 

 Holbein labeled his retaliation cause of action as arising under the Act. In 

resisting dismissal, however, Holbein explained that he did “not state a cause of 

action for violation” of the Act but rather brought “a wholly different cause of action 

. . . under Nebraska common law,” namely, retaliation in contravention of public 

policy. See, e.g., Wendeln v. The Beatrice Manor, Inc., 712 N.W.2d 226, 238 (Neb. 

2006) (“[A] public policy-based retaliatory discharge claim is based in tort.”). The 

way he pleaded this claim bears this out: although the Act is identified as the cause 

of action, Holbein pleaded two “theor[ies] of recovery” under this count, both of 

which are retaliation claims arising under state law. In other words, Holbein’s cause 

of action ostensibly arising under the Act is in reality a state-law employment claim. 

This cause of action, then, does not straightforwardly “aris[e] under the . . . laws of 

the United States.” 28 U.S.C. § 1331. 

TAW Enterprises nevertheless argues that we have jurisdiction under the 

“variety of federal ‘arising under’ jurisdiction” where “federal-question jurisdiction 

will lie over state-law claims that implicate significant federal issues.” Grable & 

Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312 (2005). There is 

no “‘single, precise, all-embracing’ test for jurisdiction” in such cases. Id. at 314

(quoting Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 821 (1988) 

(Stevens, J., concurring)). “Instead, the question is, does a state-law claim 

necessarily raise a stated federal issue, actually disputed and substantial, which a 

federal forum may entertain without disturbing any congressionally approved 

balance of federal and state judicial responsibilities.” Id. 

We have applied this variety of federal question jurisdiction narrowly, 

recognizing that it exists only in a “‘special and small category’ of cases.” Great 

Lakes Gas Transmission Ltd. P’ship v. Essar Steel Minn. LLC, 843 F.3d 325, 331 

(8th Cir. 2016) (quoting Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 
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677, 699 (2006)). We conclude that this action does not fit within this “slim 

category” of cases. See Empire Healthchoice Assurance, 547 U.S. at 701. 

In Merrell Dow Pharmaceuticals Inc. v. Thompson, the Supreme Court 

addressed “whether the incorporation of a federal standard in a state-law private 

action” suffices under § 1331 to bestow federal question jurisdiction even though 

Congress did not authorize a private cause of action “for violations of that federal 

standard.” 478 U.S. 804, 805 (1986). The plaintiffs had brought a state-law 

negligence claim based on defendant’s alleged misbranding of a drug in violation of 

the Federal Food, Drug, and Cosmetic Act (“FDCA”). Id. at 805-06. Defendant 

removed, alleging federal question jurisdiction. Id. at 806. The Court took note of 

the fact that “there is no federal cause of action for FDCA violations,” id. at 810, the 

significance of which could not “be overstated” in its analysis, id. at 812. It then

concluded that Congress’s decision not to furnish a private cause of action under the 

statute was “tantamount to a congressional conclusion that the presence of a claimed 

violation of the statute as an element of a state cause of action is insufficiently 

‘substantial’ to confer federal-question jurisdiction.” Id. at 814.

As was true of the FDCA in Merrell Dow, so too here, there is no private right 

of action for violations of the Act. See Dunmire v. Morgan Stanley DW, Inc., 475 

F.3d 956, 960 (8th Cir. 2007). This is “evidence” by itself that any federal question 

implicated by Holbein’s claim is insufficiently substantial to permit us to exercise 

federal question jurisdiction. See Grable, 545 U.S. at 318. Furthermore, the essence 

of Holbein’s claim, as both the parties argue it and the district court analyzed it, is 

whether the Act creates a state-recognized “public policy” implicating a state-law 

exception to Nebraska’s at-will termination rule. Thus, the Act is just a component 

of “a state cause of action,” and its mere presence as a basis for this state-law claim

“is insufficiently ‘substantial’ to confer federal-question jurisdiction.” Merrell Dow 

Pharms., 478 U.S. at 814. “When, as here, the rights involved are rooted in state 

law, the presence of a collateral federal issue does not transform the action into a 

federal case.” McNeill v. Franke, 171 F.3d 561, 564 (8th Cir. 1999). 
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III.

We recognize that the parties and the district court expended “time, effort, and 

expense before the issue of subject matter jurisdiction was raised,” but we cannot 

avoid our duty to determine its existence “at any time, even on appeal.” Great Lakes 

Gas Trans. Ltd. P’ship, 843 F.3d at 334. Neither we nor the district court could 

properly exercise subject-matter jurisdiction over this action because removal 

premised on diversity jurisdiction would violate the forum-defendant rule, a 

jurisdictional defect in this circuit, and Holbein’s amended complaint does not 

present a federal question. We thus vacate the judgment of the district court and 

remand with instructions to remand this action back to state court. See id.

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