IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-10389

JOHN WILEY PRICE,

Plaintiff-Appellee

v.

EDDIE BERNICE JOHNSON,

Defendant-Appellant,

Appeal from the United States District Court

for the Northern District of Texas

Before REAVLEY, DAVIS, and STEWART, Circuit Judges.

REAVLEY, Circuit Judge:

This case arises out of a dispute between two Texas public officials.

Pursuant to state procedural rules, Appellee John Wiley Price, a Dallas County

Commissioner, sought an order in state court to take an investigatory deposition

of Appellant Congresswoman Eddie Bernice Johnson. Rep. Johnson removed the

matter to federal court under the federal officer removal statute, 28 U.S.C.

§ 1442(a)(1), but the district court remanded it to state court because Price’s

petition was not a “civil action” subject to removal. Rep. Johnson appeals the

district court’s order. We lack jurisdiction to review the district court’s remand

order, and we DISMISS the appeal.

United States Court of Appeals

Fifth Circuit

F I L E D

March 11, 2010

Charles R. Fulbruge III

Clerk

Case: 09-10389 Document: 00511049094 Page: 1 Date Filed: 03/11/2010
No. 09-10389

 The state rule provides:

1

A person may petition the court for an order authorizing the taking of a

deposition on oral examination or written questions either:

(a) to perpetuate or obtain the person’s own testimony or that of any other

person for use in an anticipated suit; or

(b) to investigate a potential claim or suit.

TEX. R. CIV. P. 202.1.

 The statute states, in relevant part: 2

A civil action or criminal prosecution commenced in a State court against any

of the following may be removed by them to the district court of the United

States for the district and division embracing the place wherein it is pending:

2

I.

The genesis of the dispute between Commissioner Price and Rep. Johnson

is an interview that the Congresswoman gave in December 2008 to the Dallas

Observer in which she allegedly made statements questioning Commissioner

Price’s ethics and accusing him of “shaking down” parties involved in a land

development. As a result of the interview, Commissioner Price filed in the 14th

Judicial District Court of Dallas County, Texas a Verified Petition To Take

Deposition Before Suit under Texas Rule of Civil Procedure 202.1. The petition 1

stated that Price did not know whether he intended to pursue a lawsuit against

Rep. Johnson but sought to take the Congresswoman’s deposition in order to

investigate potential claims for defamation. 

Rep. Johnson removed the petition to the United States District Court for

the Northern District of Texas, citing as grounds for removal the federal officer

removal statute, 28 U.S.C. § 1442(a)(1). That statute permits inter alia removal

to federal court when a “civil action” has been filed against an officer of the

United States who was acting under color of her office. Rep. Johnson asserted 2

Case: 09-10389 Document: 00511049094 Page: 2 Date Filed: 03/11/2010
No. 09-10389

(1) The 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, sued in an

official or individual capacity for any act under color of such office or on account

of any right, title or authority claimed under any Act of Congress for the

apprehension or punishment of criminals or the collection of the revenue.

28 U.S.C. § 1442(a)(1).

 986 F.2d 912, 914 (5th Cir. 1993) (“Prior to reviewing the merits of any case, this 3

Court must be satisfied that it has subject matter and appellate jurisdiction.”).

 172 F.3d 923, 925 (5th Cir. 1999) (discussing Thermtron Prods., Inc. v. Hermansdorfer,

4

423 U.S. 336, 343, 96 S. Ct. 584, 589 (1976)).

3

in her removal notice that she was the subject of a pre-suit discovery action

under Texas Rule 202.1 that concerned actions taken by her under color of her

office as a United States Representative and Member of the House.

Upon motion by Commissioner Price, the district court remanded the

petition to state court. The district court reasoned that a Rule 202.1 proceeding

in state court is not a removable “civil action” under § 1442(a)(1) because it

asserts no claim upon which relief can be granted and instead seeks an order for

a deposition that may or may not result in the filing of an actual suit. Rep.

Johnson challenges the district court’s order on appeal. We first must examine

our own appellate jurisdiction. See Bader v. Atl. Int’l, Ltd.3

II.

A remand order is generally barred from appellate review by 28 U.S.C.

§ 1447(d), which provides that “[a]n order remanding a case to the State court

from which it was removed is not reviewable on appeal or otherwise . . . .” This

bar to review applies even if the order might otherwise be deemed erroneous.

Smith v. Tex. Children’s Hosp. The immunity from appellate review is 4

narrowed, however, when § 1447(d) is read in pari materia with 28 U.S.C.

§ 1447(c), so that only remand orders based on grounds recognized in § 1447(c)

Case: 09-10389 Document: 00511049094 Page: 3 Date Filed: 03/11/2010
No. 09-10389

 516 U.S. 124, 127–28, 116 S. Ct. 494, 497 (1995) (citing Thermtron Prods., 423 U.S. 5

at 345–46, 96 S. Ct. at 590–91).

Id.; see 28 U.S.C. § 1447(c) (“A motion to remand the case on the basis of any defect 6

other than lack of subject matter jurisdiction must be made within 30 days after the filing of

the notice of removal under section 1446(a). If at any time before final judgment it appears

that the district court lacks subject matter jurisdiction, the case shall be remanded.”).

 923 F.2d 406, 408 (5th Cir. 1991) (internal quotation omitted); see also In re Weaver,

7

610 F.2d 335, 337 (5th Cir. 1980) (holding that court is precluded from reviewing remand order

where district court did not clearly rely on a non-§ 1447(c) ground for remand); In re

Merrimack Mut. Fire Ins. Co., 587 F.2d 642, 648 (5th Cir. 1978) (“[I]t appears that Thermtron

was intended to be strictly limited to those cases in which a district judge has actually stated

that he is not relying on § 1447(c) in ordering a remand.”).

 937 F.2d 184, 185–86 (5th Cir. 1991); see also Niagra Mohawk Power Corp. v. Bankers 8

Trust Co. of Albany, N.A., U.S., 791 F.2d 242, 244 (2d Cir. 1986) (“The removal statute used

by the government in this case, 28 U.S.C. § 1442(a)(1), confers jurisdiction as well as the right

of removal.”).

4

are unreviewable. Things Remembered, Inc. v. Petrarca. Those grounds are 5

defects in the removal procedure or lack of subject matter jurisdiction. There 6

is no contention in this case of a defect in the removal procedure. Therefore, if

the district court’s remand order was based on a lack of jurisdiction, we may not

review the order in this appeal.

In order to exercise our appellate jurisdiction, we require that the district

court’s order clearly show the remand was not based on § 1447(c): “[W]e will only

review remand orders if the district court affirmatively states a non-1447(c)

ground for remand.” Soley v. First Nat’l Bank of Commerce. As noted above, 7

the district court remanded the petition because it did not satisfy § 1442(a)(1)’s

requirement of a “civil action.” This was not a clear affirmative statement of a

non-1447(c) ground, and it may not be reviewed.

We have previously held that the failure to satisfy § 1442 deprives the

federal court of subject matter jurisdiction. See Guadalupe-Blanco River Auth.

v. City of Lytle. Therefore, fairly read, the district court’s remand order based 8

on the belief that the petition was not removable under § 1442(a)(1) was based

Case: 09-10389 Document: 00511049094 Page: 4 Date Filed: 03/11/2010
No. 09-10389

See, e.g., Weaver, 610 F.2d at 337 (holding that although district court did not cite 9

specific language of § 1447(c) in remand order but believed the case was not removable, the

“logical inference” was that the court felt jurisdiction was lacking).

Guadalupe-Blanco, 937 F.2d at 185. 10

Id. Section 1442(a)(1) has since been amended to permit agencies as well as officers 11

to remove such suits. See Pub. L. No. 104-317, 110 Stat. 3847, § 206(a)(1) (1996).

Guadalupe-Blanco, 937 F.2d at 185. 12

 We note that in the “Jurisdictional Statement” of her brief to this court, Rep. Johnson 13

acknowledged that the district court’s subject matter jurisdiction arose from § 1442. We also

note that, unlike the Texas state rules, the Federal Rules of Civil Procedure, which would be

applicable to the removed petition, do not permit pre-suit investigative depositions. See FED.

R. CIV. P. 27(a).

5

on a lack of subject matter jurisdiction. We find Guadalupe-Blanco to be

9

instructive. In that case, two federal agency defendants removed to federal court

a state suit to adjudicate water rights and moved to dismiss based on sovereign

immunity. The version of § 1442(a)(1) in effect at that time did not permit 10

agencies to assert federal officer removal—only federal officers could do so.11

Because the defendants could not rely on § 1442(a)(1) as the basis for

jurisdiction, and there was no other basis for federal court jurisdiction in the

case, we held that there was no subject matter jurisdiction and dismissed the

appeal.12

The same rationale applies in this case. The district court concluded that

Rep. Johnson could not rely on § 1442(a)(1), although for a reason different from

Guadalupe-Blanco, viz. the lack of a “civil action.” There is no other basis

apparent on the record for federal jurisdiction. Because § 1442(a)(1) is a 13

jurisdictional statute, the district court’s finding that Rep. Johnson failed to

satisfy the statute’s requirements leads to the natural conclusion that the

district court felt there was no subject matter jurisdiction, and the appeal must

be dismissed.

Case: 09-10389 Document: 00511049094 Page: 5 Date Filed: 03/11/2010
No. 09-10389

 519 U.S. 61, 117 S. Ct. 467 (1996). 14

Id. at 65, 117 S. Ct. at 471. 15

Id.

16

Id. at 73, 117 S. Ct. at 475. 17

6

Rep. Johnson argues that the Supreme Court in Caterpillar Inc. v. Lewis14

recognized a distinction between subject matter jurisdiction and the statutory

requirements permitting removal to federal court. She therefore suggests that

the “civil action” requirement for removal under § 1442(a)(1) is merely a

statutory element the failure of which does not implicate subject matter

jurisdiction. Under this reasoning, the district court’s remand would not be

based on § 1447(c) and could be reviewed. We find the argument and the

citation to Caterpillar unpersuasive.

In Caterpillar, the Court had to decide whether the absence of complete

diversity, as required by 28 U.S.C. § 1441(a), at the time of removal was fatal to

a federal court adjudication even though the defect had been cured by the

dismissal of a non-diverse defendant before trial and was no longer present at

the time the district court entered judgment. The Supreme Court held that the 15

judgment could stand. In doing so, the Court noted that although the 16

“jurisdictional defect” had been cured in the case by the time of judgment, the

“statutory flaw” of failing to meet § 1441(a)’s requirements at the time of

removal “remained in the unerasable history of the case.” But the Court did 17

not disturb the judgment because the federal jurisdictional requirements had

been met at the time judgment was entered. Rep. Johnson asserts that the

quoted language necessarily means that not every aspect of a removal statute

concerns subject matter jurisdiction. We acknowledge that the Court spoke of

both a jurisdictional defect and a statutory violation in Caterpillar, but in that

Case: 09-10389 Document: 00511049094 Page: 6 Date Filed: 03/11/2010
No. 09-10389

See id.; see also Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 574, 124

18

S. Ct. 1920, 1926 (2004) (stating that Caterpillar’s holding was that a statutory defect, i.e.,

failure to meet the § 1441(a) requirement that the case be fit for federal adjudication at the

time the removal petition is filed, “did not require dismissal once there was no longer any

jurisdictional defect”). 

See Grupo Dataflux, 541 U.S. at 572–73, 124 S. Ct. at 1925 (noting that Caterpillar 19

“broke no new ground” and merely applied a long-recognized exception to the “time-of-filing

rule” that jurisdiction must exist when the action is brought).

Caterpillar, 541 U.S. at 77, 117 S. Ct. at 477. 20

Id. (emphasis added). 21

7

case the two were the same, i.e., the absence of complete diversity. The Court 18

was merely explaining the question it had to address in the case due to the

timing of the defect and its cure.19

Caterpillar did not directly address the question in this case of whether

the remand for failure to satisfy the removal statute is unreviewable because it

is based on a lack of jurisdiction. A later portion of the opinion is instructive,

however. The respondent there asserted that if the judgment was allowed to

stand, despite the initial statutory defect in the removal,the procedural rules for

removal would in effect become unenforceable and defendants would be

encouraged to remove cases prematurely. The Caterpillar Court rejected the 20

argument and noted that this was unlikely because a “well-advised” defendant

would foresee the result of attempting to remove without meeting the

requirements of the removal statute: “a swift and nonreviewable remand

order.” That is precisely the outcome warranted in the instant case. 

21

Rep. Johnson also argues in her supplemental letter brief that because the

Attorney General has determined under the Westfall Act that she was acting

within the scope of her federal employment, she is immune from any claims

against her under the Federal Tort Claims Act, and there is federal question

Case: 09-10389 Document: 00511049094 Page: 7 Date Filed: 03/11/2010
No. 09-10389

See 28 U.S.C. § 2679(d). 22

 328 F.3d 212, 214 (5th Cir. 2003); see § 2679(d)(2). 23

See Brown v. Ames, 201 F.3d 654, 663 (5th Cir. 2000) (“To avoid being waived, an

24

argument must be raised to such a degree that the trial court may rule on it.”) (quotation

marks and citation omitted).

 540 F.3d 315, 327 (5th Cir. 2008). 25

8

jurisdiction here. “The Westfall Act provides that, upon certification by the 22

Attorney General or his designated representative that the government

employee was acting within the scope of his employment at the time of the

allegedly tortious act, the United States may remove the action to federal court

and substitute itself as the defendant in the suit.” Counts v. Guevara. The 23

Attorney General’s certification in this case is not properly before us at this time.

Johnson sought removal based only on § 1442(a)(1). She never asserted in the

district court, either in her removal notice or post-remand order motions, that

removal was warranted by Westfall Act certification. Moreover, Rep. Johnson 24

apparently obtained the Attorney General’s certification only after the district

court’s remand order, and we generally will not enlarge the record to consider

evidence that was not before the district court. McIntosh v. Partridge. We

25

therefore decline to consider this issue and express no opinion on it.

APPEAL DISMISSED.

Case: 09-10389 Document: 00511049094 Page: 8 Date Filed: 03/11/2010