United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 26, 2020 Decided February 26, 2021

No. 19-5174

BRIAN HAMMER,

APPELLANT

v.

UNITED STATES OF AMERICA,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:19-cv-01113)

Anthony J. Dick, appointed by the court, argued the cause 

as amicus curiae in support of appellant. On the brief was Ariel 

Volpe, appointed by the court.

Brian Hammer, pro se, filed the brief for appellant.

Derek Hammond, Assistant U.S. Attorney, argued the 

cause for appellee. With him on the brief was R. Craig 

Lawrence, Assistant U.S. Attorney.

Before: TATEL and WILKINS, Circuit Judges, and 

RANDOLPH, Senior Circuit Judge.
2

Opinion for the Court filed by Circuit Judge WILKINS.

Opinion concurring in the judgment filed by Senior Circuit 

Judge RANDOLPH.

WILKINS, Circuit Judge: Appellant Brian Hammer filed a 

breach of contract claim against the Government in the D.C. 

Superior Court. The Government removed to the District 

Court. The District Court found that the Government had only 

waived sovereign immunity against Appellant’s claim in the 

Court of Federal Claims, and that Appellant had already 

brought his claim in the Court of Federal Claims, which had

dismissed it. So the District Court dismissed Appellant’s 

claim, too. Appellant argues that under 28 U.S.C. § 1447(c), 

which provides that “[i]f at any time before final judgment it 

appears that the district court lacks subject matter jurisdiction, 

the case shall be remanded,” the District Court should have 

remanded his claim. For the reasons given below, we affirm 

the District Court. 

I.

In 2015, a federal magistrate judge appointed the Federal 

Public Defender for the Eastern District of California to 

represent Appellant after he failed to pay restitution for 

multiple convictions of mail and wire fraud. See Hammer v. 

Fed. Pub. Def. Org. of the E. Dist. of Cal., No. 3:16-cv-02192, 

2017 WL 2692937, at *1 (S.D. Cal. June 22, 2017). Later, the 

Federal Defender withdrew its representation. Id. Appellant 

proceeded to file several claims against the Federal Defender 

for breach of contract. See id.; Complaint, Dkt. No. 1, Hammer 

v. United States, No. 1:17-cv-00912 (Fed. Cl. July 3, 2017); 

Hammer v. United States, No. 3:17-cv-02137, 2018 WL 

6855945 (S.D. Cal. Sept. 13, 2018); Complaint, Dkt. No. 1, 

Hammer v. United States, No. 1:18-cv-1606 (Fed. Cl. Jan. 10, 
3

2019). This appeal concerns one of those claims, which 

Appellant originally filed in the Court of Federal Claims for 

$37,000 in damages, and which the Court of Federal Claims 

dismissed for failure to allege the existence of an enforceable 

contract. See Order at 2, Hammer v. United States, No. 1:18-

cv-1606, ECF No. 12 (Fed. Cl. Jan. 10, 2019). Appellant then 

filed the same claim in the D.C. Superior Court. The 

Government removed the case to the District Court and moved 

to dismiss for lack of subject matter jurisdiction and for failure 

to state a claim upon which relief may be granted. Appellant 

moved to remand the case to Superior Court under 28 U.S.C. § 

1447(c). 

The District Court found that it lacked subject matter 

jurisdiction over Appellant’s claim because Appellant sought 

over $10,000 in damages and therefore, under the Tucker Act, 

could only bring his claim in the Court of Federal Claims. The 

District Court also found that Appellant’s claim was foreclosed 

under the doctrine of collateral estoppel, because the Court of 

Federal Claims had already rejected it. The District Court 

denied Appellant’s motion to remand and dismissed 

Appellant’s claim. 

Appellant, acting pro se, timely appealed to this Court for 

review of the District Court’s order. This Court appointed a 

member of the law firm Jones Day as amicus curiae on its own 

motion to present arguments in favor of Appellant’s position.1

II.

1 Anthony Dick was appointed and filed briefs in support of 

Appellant’s position, and appeared on Appellant’s behalf at oral 

argument. The Court commends appointed counsel for work of 

excellent quality and service in the best tradition of the bar.
4

28 U.S.C. § 1447(c) provides that “[i]f at any time before 

final judgment it appears that the district court lacks subject 

matter jurisdiction [over a case removed from state court], the 

case shall be remanded.” 

While the “shall” in § 1447(c) is unambiguous, we must 

read § 1447(c) in its context. See Roberts v. Sea-Land Services, 

Inc., 566 U.S. 93, 101 (2012). That context includes 28 U.S.C. 

§ 1442(a)(1), which allows the United States to remove to 

federal court civil actions commenced against it in state court, 

and the Tucker Act, which this Court has interpreted to confer 

exclusive jurisdiction over breach of contract claims against the 

United States seeking more than $10,000 in damages on the 

Court of Federal Claims. See 28 U.S.C. §§ 1346(a), 1491(a); 

Greenhill v. Spellings, 482 F.3d 569, 573 (D.C. Cir. 2007). 

Together, 28 U.S.C. § 1442(a)(1) and the Tucker Act make 

clear that § 1447(c) does not require the District Court to 

remand in this case. Congress intended § 1442’s removal 

provision to protect the Government from having to litigate 

immunity defenses in hostile state courts. See Willingham v. 

Morgan, 395 U.S. 402, 405 (1969); H. R. REP. 104-798, at 20

(1996) (noting that Congress meant § 1442 to redress its 

concern over “federal agencies hav[ing] to defend themselves 

in state court” by allowing “questions concerning . . . the scope 

of federal immunity . . . [to] be adjudicated in federal court”). 

The Supreme Court has repeatedly reminded us that the right 

of removal under § 1442(a) is “absolute,” Arizona v. 

Manypenny, 451 U.S. 232, 242 (1981); Willingham v. Morgan, 

395 U.S. 402, 406 (1969), and “should not be frustrated by a 

narrow, grudging [statutory] interpretation,” Willingham, 395 

U.S. at 407. And the Court has instructed that “[o]ne of the 

purposes of immunity, absolute or qualified, is to spare a 

defendant not only unwarranted liability, but unwarranted 

demands customarily imposed upon those defending a long 
5

drawn out lawsuit.” Siegert v. Gilley, 500 U.S. 226, 232 (1991). 

In other words, the entitlement to immunity “is an immunity 

from suit rather than a mere defense to liability.” Mitchell v. 

Forsyth, 472 U.S. 511, 526 (1985). 

To require the District Court to remand Appellant’s claim 

here, where the government has waived sovereign immunity 

against Appellant’s claim only in the Court of Federal Claims, 

and where that court has already dismissed Appellant’s claim, 

would be to subject the government to lengthy and piecemeal 

litigation of the kind that Congress intended 28 U.S.C. § 

1442(a)(1) to allow it to avoid. Therefore, in context, we 

conclude that Congress did not intend the “shall be remanded” 

language in 28 U.S.C. § 1447(c) to mean that the District Court 

must force the Government to spend one more ounce of 

resources on the re-litigation of a case it has already won.

III.

For the foregoing reasons, we affirm the judgment of the 

District Court. 

So ordered.
RANDOLPH, Senior Circuit Judge, concurring in the judgment:

I see no need to parse 28 U.S.C. § 1447(c). Appellate

courts are “constrained to disregard . . . errors not affecting

substantial rights.” United States v. Pryce, 938 F.2d 1343, 1351

(D.C. Cir. 1991) (Randolph, J., concurring). Here, the district

court purportedly erred by dismissing instead of remanding. But

the United States has not waived sovereign immunity in the

District of Columbia Superior Court, so federal law would have

required that court to dismiss. See Oral Arg. Recording at

1:18–1:55; see also Franklin-Mason v. Mabus, 742 F.3d 1051,

1054–55 (D.C. Cir. 2014). It follows that even if § 1447(c)

required a remand rather than a dismissal, the district court’s

error would be harmless. See 28 U.S.C. § 2111.