### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 13-30155

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 empl o y e e of Jon C. Thornburg (“Thornburg”), the standing bankruptcy tru s t e e for the Western District of Louisiana, fil e d suit in state court alleging that she had been terminated because of her r ace in violation of the Louisiana Employment Di s c r i m ination Law (“LEDL”), Louisiana R evised S t atutes §§ 23:301–03, 23:323. Thornburg removed Bell’s s uit t o 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 j u d g m e n t. Th e district court determined that removal was proper, and that Thornburg should b e granted s ummary judgment because he did not qualify as an “employer” under the LEDL. Bell appeals both U n i t ed S t a t e s C o u rt o f A p p e a l s

F i f t h C i rc u i t 

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determinations. Because removal w as p r oper and Thornburg does n ot q u a l i f y 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 a s its office manager. In 2008, Thornburg began serving as the standing trustee for Chapter 13 bankruptcies in the W e s t ern District of Louisiana. Bell claims that she and Thornburg disagreed frequ e n tly, and the quality of h er work life deteriorated after Thornburg’s arrival. In O ctober 2010, Bell was required to submit t o a “ p e er review,” which three trustees from the National Organization of C hapter 13 T rustees administered

. Tw o o f th e trustees interviewed Bell, while a thi r d sought input from the local bankruptcy judge. Based i n part on statements by the bankruptcy judge that he disliked B ell, the
peer review panel suggested to Thornburg that B ell be fired

. Thornburg disagreed, but n o n e t h eless b elieved Bell should be given a different position. Bell remained on the office’s payroll while Thornburg looked for another position for her i n the office, but problems between Thornburg and Bell p ersisted , a nd Thornburg ultimately t erminated Bell o n April 4, 2011. S he 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 beca u s e o f h e r race in violation of the LEDL. Thornburg removed to federal district court in the Western District of L ouisiana

on the theory that, as a s tanding trustee, he was a p e rson acting under an officer of the U nited S t a t e s 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 m o v e d for s ummary judgment, arguing that he had not

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employed twenty or more employees for twenty or more weeks, as is required to qualify a s an “employer” u nder the LEDL, L ouisiana Revised Statute § 23:302(2). Bell, meanwhile, moved to hav e the case remanded to state court, arguing that Thornburg was a private citizen n ot covered by the federal officer removal statute. The magistrate judge assigned t o the c ase f ound that this Court’s decision in Cro m elin v. U

nited States , 177 F.2d 275 (5th C ir. 1949), precluded the application of § 14 4 2(a)(1) t o Thornburg. Cromelin considered whether the Federal Tort Claims Act applied to bankruptcy trustees and held that a “trustee, like a r eceiver, is an officer o f [the] court, appointed by the court, directed by the court, and paid by the court from the funds i n 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 o n l y to “[t]he United States or any agency thereof or any officer (or any p erson a cting under th a t o f f i cer) o f the United States o r of any agency thereof.” T h e m a gi s trate judge also noted, however, that regardless of

w h e t h e r § 1442(a)(1) applied to Thornburg, removal under any part of § 1442 carries with it the additional requirement that the mover assert “a colorab l e claim of federal immunity or other federal defense.” See Mesa v. California, 489 U.S. 121, 124, 129 (1989). Because Thornburg had provided n othing more than the conclusory state m e n t i n his notice of removal that “he has a valid and colorable federal defense t o all claims made,” the magistrate judge determined that removal had been improper and recommended remanding the case to state court. T h e district court disagreed with the m agistrate judge’s conclusion th a t 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 U nited States. See 28
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U.S.C. § 1 442(a)(3) (offering the federal officer removal privilege to “[a]ny officer of the courts of the United States, for or relating to a ny 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 u nder the statute. With r espect to the m agistrate judge’s determination that Thornburg had failed to meet the requirement that he aver a f ede r a l d e f

e n s e , the court relied on Thornburg’s s tatement “that any alleged e m ployment di scrimination toward [Bell] w as based on the ‘peer review.’” The c o urt concluded that because the peer review included the involvement of the presiding bankruptcy judge, Th o rnburg’s statement sufficed as an averment of a colorable federal defense, and it denied Bell’s remand request. The district c ourt then turned to Thornburg’s motion for summa r y 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, h e could not b e considered an employer under the L EDL. The court thus concluded that the LEDL did n ot a p p l y t o T h ornburg, and granted his summary judgment motion. Bell timely appealed. II. DISCUSSION A. Standard of Review This Court reviews the denial of a m o tion to r emand d e novo. Manguno

v. Prudential Prop. & Cas. Ins. Co. , 276 F.3d 720, 722 ( 5th Cir. 2002). The Court also reviews a grant of summary judgment de novo, viewing all evidence in the light most favorable to the nonmoving p arty and drawing a ll reasonable inferences in that party’s f avor. Pierc e v . Dep’t of t h e U .S. Air Force , 512 F.3d 184, 1 86 ( 5th Cir. 2007). “[S]ummary judgment is prop e r i f t h e pleadings, depositions, answe r s t o i nt e rro g at ories, and admissions on f ile, together with the affidavits, if any, show that there is no genuine issue a s to any material fact and

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that the moving pa r t y i s e n titled t o a judgment as a matter of law.” Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986) (internal quotation marks omitted). B. Whether the District Court Properly Exercised J urisdiction over Bell’s Suit Against Thornburg The federal o fficer removal statute, 28 U.S.C. § 1442, c reates an e xception to the well-pleaded complaint rule. The statute states, in relevant part: (a) A civi l a c t ion or criminal prosecution that is commenced in a State court a nd that is against or directed to any of the following may be r e m o v e d by them to the district court o f the United States for the district and division embracing the place wherein it is pending: (1) The U nited S t ates or any agency thereof or any officer (or any person acting under that officer) of the United States or of a ny agency thereof, in an official or individual capacity, for or relating to any act under color of such office or on account o f a ny right, title or authority c laimed under any Act o f Congress for the a pprehension or punishment of criminals or the collection of the revenue. . . . (3) Any o fficer o f the c o u r t s of the United States, f or or relating to any a ct under color of office or in the performance of his duties . . . .
28 U

. S.C. § 1442. Thus, to invoke the f ederal officer removal s t atute, Thornburg must both act under an officer of the United States and h ave averred a colorable federal d efense. See Mesa, 489 U.S. 133

– 3 4

. We a ddress each of these requirements in turn. 1. Whether Thornburg “act[s] under” a n of f i c er of the United States such t hat removal under the federal officer removal statute is available to him B e l l a r g u es that this Court should remand her claim to s tate court because, based on this Court’s decision in Cromelin , Thornbu r g cannot take advantage of the federal officer r e m oval s tatute and remove the case under § 1442(a)(1). See Cromelin , 177 F.2d at 277 (holding that a bankruptcy trustee
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is “an officer of [the] court, a p p o i n t e d by the court, directed b y the court, and paid by the court” but “is i n no sense an agent or emplo y e e or o fficer of the United States”). Thornburg, however, claims that he is entitle d t o removal under § 1442 because he acts under and closely with the United States Trustee. We hold that Thornburg is a “person acting under” an officer of the United States who may invoke § 1442(a)(1) of the federal officer removal statute. While Bell cites Cromelinfor support, she fails to acknowledge that it was decided in 1949, b efore the Bankruptcy R eform Act of 1 9 7 8 c hanged the way the bankruptcy trustee system w as administered. Thus, Cromelin does not control

our decision here. See United S t a t e s Trustee Program P olicies and Practices M a n u a l , v o l

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_O vervi ew . p df (hereinafter “Trustee Manual”). Due i n part to c o ncern that the courts would not f a i r l y adjudicate the rights of debtors, c reditors, and third parties, th e Bankruptcy Reform Act removed the authority to perform many administrative duties f rom the courts and instead c o ncentrated them u n d er a n ew position in the Department of J us t i ce—specifically, the U.S. Trustee. See id

. The U.S. Tru s t e e ’ s a d m i ni s tr ativ e duti e s i nc lu d e a p p o inting Chapter 13 s t an di n g tru s t e e s . 28 U.S.C. § 586(b); Trustee Manual, Chapter 1-4.3. B ut, the Bankruptcy Reform Act of 1978 also means that the district court’s conclusion that Thornburg could invoke § 1442(a)(3) w as base d o n an inaccurate assumption, because the U.S. Trustee is an officer of the Department of Justice, not of the court. In concluding that Thornburg meets the “acting under” requirement, we rely on Watson v. P

hilip Morris Cos., 551 U.S. 142 ( 2007), the Supreme Court’s most recent elaboration on this requirement. I n Watson , the Court considered whether the F ederal Trad e Commission’s close supervision of Philip Morris’s activities meant the company was “acting under an officer of the United States.” Id. at 145 (emphasis and i nternal quotation marks o mitted). Although the Court
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held that § 1442(a)(1) was unavailable to Philip Morris, id. , it r e it e r ated previous decisions’ guidance that the statute be “liberally construed,” i d. at 1 47 (quoting Colorado v. S

y m e s , 2 86 U.S. 510, 517 ( 1932)). The Court explained that § 1442(a)(1) may apply “to private persons ‘who lawfully assist’ [a] federal officer

‘ i n t h e performance o f his official duty,’” id. at 151 (quoting Davis v. Sout h Carolina , 107 U.S. 597, 6 00 (1883)), or to private parties who “were ‘authorized to act with or for [federal officers or agents] in affirmatively e x e c uting duties under . . . federal law,’” id. (alterations in original) (quoting City of Greenwood

v. Peacock , 384 U.S. 808, 824 (1966))

. T h e C o urt made clear that “simply complying with the law” is not sufficient; “‘acting under’ must involve an effort to assist, or to help carry out, the duties or tasks of the federal superior.” Id. at 152 (emphases omitted). Though Bell argues that Chapter 1 3 s t a n di n g tru stees are p rivate citizens, Watson makes c lear that this fact alone does not bar the u se of § 1 442(a)(1). See 5 5 1 U.S. at 1 51. Chapter 13 standing trustees like Th ornburg are appoint e d pursuant to federal law by the U.S. Trustee for the purpose o f assisting the U.S. Trustee with e specially heavy Chapter 13 bankruptcy caseloads. See 28 U.S.C. § 586(b); 28 C.F.R. § 58.2. T h e U

. S

. Trustee supervises the standing trustee, who is t a sked w i t h c a r r y i ng out the provisions of the Bankruptcy C ode. 28 U.S.C. § 586(b). Unlike Philip Morris in Watson , standing trustees r e c eive delegated a uthority; they do not merely comply with the law. They both “assist” and “ c a rry out” the duties and tasks of their federal superiors. Thus, we conclude that Thornburg “act[s] under” officers of the U nited S tates and f all within § 1442(a)(1)’s purview. 2. Whether Thornburg has averred “a colorable federal defense” Bell also claims that Thornburg is not entitled to invoke the federal officer removal statute because he has failed to aver a colorable fed e r a l defense and failed to p rovide any evidence to establish a federal defense. Thornburg counters
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that, b ecause his employment actions relative to Bell were conducted u nder the color of o ffice and while performing his official duties, he has averred a colorable f e d eral defense and was entitled to remove this c a se under the federal offi c e r removal statute. He points this Co u rt to t wo earlier decisions, Willingham v. Morgan , 395 U.S. 402 (1969) and Palermo v. Rorex , 806 F.2d 1 2 6 6 (5th Cir. 1987), to support his arguments. The Supreme Court has made clear that “a l l t h e v arious incarnations of the f ederal officer removal statute

. . . r equire th e averment of a federal d efense.” Mesa , 489 U.S. at 133–34. But, the officer seeking removal need not “win his

case [by proving h is f ederal defense ] b e f

o r e he can have it removed.” Willingham , 395 U.S. at 407. He must only allege “a causal c onnection between what the officer has done u nd e r a s serted official authority and the state [action],” Mesa , 489 U.S. at 131 (quoting Maryland v. So p e r , 270 U.S. 9, 33 (1926)); s e e a ls o Jefferson Cnty. v. Acker , 527 U.S. 423, 431 ( 1999) (“Under the federal officer r emoval statute, suits against federal officers ma y b e r e moved despite the nonfederal c ast o f the complaint; the f ederal-question element is met if the defense depends on federal law.”). In Willingham , the Supreme Court c o nsidered whether the bare a ssertion of federal qualified i mmunity sufficed t o allow removal under § 1442(a)(1). See 395 U.S. at 406–08. The case involve d a s t a t e claim by a prisoner i n a federal penitentiary that prison o fficials had a ssaulted him. Id. at 403. The prison officials removed, stating that anything they may have done to the prisoner was “in the course of their duties as officers of the United States of America

. . . and under color of s uch o f f i c e s . ” Id

. On the i ssue of how strong the e videntiary showing of immunity had t o be to obtain removal, the Court stated, “One of the primary purposes o f the removal statute

. . . was to have [colorable defenses arising o ut of f

ederal o fficers’ duty t o enforce federal law] litigated in the federal courts.” I

d

. at 407. “In fact,” the Court w ent on, “o ne o f the most important
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reasons for removal i s to have the v alidity of the defense of official immunity tried in a federal court. The officer need not win his case before he can have it removed.” Id. Having settled the question of whether an officer need p rove, rather than merely assert, a federal d e f e n s e, the C ourt proceeded to discuss the distinct issue of whether the r ecord in the case would support a finding that the suit i nvolved “conduct under color of offic e , a n d that it [was], therefore, removable.” Id. It observed that, in a civil suit of the type at issue in Willingham , “it was sufficient for p etitioners to have s hown that their relationship to [a] respondent derived

s o l e l y from their official duties.” Id. at 409. The Court found that the p r i s o n officials had made the requisite showing by asserting that “their o nl y c o ntact with respondent occurred inside the penitentiary, while they were performing their du ties.” Id. I t was enough that the prison o fficials were “on duty, at their place of federal employment, at all the relevant times. I f th e question raised is whether they were engaged i n some kind of ‘frolic of their own’

. . . they should have the opportunity t o present their v ersion of the f acts to a federal, not a state, court.” Id. We hold that Thornburg has averred a colorable federal defense. He has alleged that his “employment actions relative to [ Bell] were performed under the color of his office, i n the performance of his duties thereunder, after input from the p eer review p rocess, and involving communication w ith a nd involvement of the United States Trustee and a United States bankruptcy judge.” This kind of assertion c ompares favorably to that found sufficient in Willingham , where the prison official s i n a f

fidavits declared that “the only contact [they] had with respondent was inside the w alls of the United States Peniten tiary

. . . in performance of [their] official duties.” 395 U.S. at 407–08 (internal quotation mark omitted).

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Our decision in Palermo also bolsters our conclusion that Thornburg has averred a colorable fe d e r al defense. Palermo involved a state law wrongful death claim stemming from the workplace h arassment of a n IRS employee who ultimately committed suicide. 806 F.2d at 1268. We held that because the “state court Complaint specifically alleges that the actions complained of were
co n n ected with [the d eceased’s] status as an employee o f th e IRS,” and the defen d a n t s acted “upon the authority[,] c o nsent a nd approval of [their] supervisors,” “there [could] be no doubt that the acts alleged in the C o mplaint[]

were performed ‘under color of federal office.’” Id. at 1269. The fact that the IRS employees were sued in their individual capacities for acts that were allegedly maliciously motivated was immaterial bec a u s e the employees w ere entitled to present their version o f the f acts in a f

ederal court. See id. at 1269–70 (applying Willingham ). Here, as in Palermo , the only claims Bell makes stem from employment actions performed i n t h e course of the administration of Thornburg’s federal duties. Th u s , u n d e r Willingham and Palermo , and considering the Supreme C ourt’s guidance that § 1442(a)(1) “must be ‘liberally construed,’” we hold that Thornburg h as averred a colorable federal defense and

was e ntitled t o r emove this case under the federal officer r e moval s tatute. See Watson , 551 U.S. at 147. C. W h e t h e r T h ornburg i s Entitled to S u mma ry J u d gm e nt B e c a u s e H e Does Not Qualify As An Employer Under the LEDL Having d etermined that removal was proper i n this case, we now address whether T h o r nb u r g qualifies as an employer under the LEDL. The statute defines an employer as:

a person, association, l egal or commercial en t i t y , t he state, or any state agency, board, commission, o r political subdivision of the state receiving services from an e mployee and, in return, gi v i ng compe n sation of any kind to an e mployee. The provisions of this Chapter s hall apply only to an employer w h o employs twenty or more employees within this stat e f o r e a ch working day in each of
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twenty or m ore calendar weeks i n the current o r preceding calendar year. La. Rev. Stat. Ann. § 23:302(2) (emphasis added). Bell does not dispute that Thornburg has not emp l o y ed the requisite number o f people to qualify as an employer. I nstead she argues that Thornburg should be considered p art of the larger “ association” of “the C hapter 13 system,” which she alleges employs more than 125 people in the state. We need not credit this assertion b ecause B ell p rovides no evidence f or it. See Fed. R. Civ. P. 56(c)(1). But, even if w e were to credit Bell’s claim about the number of people employed within “the Chapter 13 system” in the state, Thornberg would still not meet the LEDL’s definition of employer. Nothing Bell claims bears on whether Tho r nb u r g himself employed a sufficient number of p eople to be held liable under the LEDL. Thus, we hold summa r y j u d g m e nt was proper because Thornburg does not qualify as an employer under the LEDL. III. CONCLUSION For the foregoing reasons, we AFFIRM.

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