RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0383p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

STATE OF OHIO ex rel. DANA SKAGGS and

KYLE FANNIN,

 Relators-Appellants,

v.

JENNIFER L. BRUNNER, Secretary of the State

of Ohio and THE BOARD OF ELECTIONS OF

FRANKLIN COUNTY, OHIO,

 Respondents-Appellees.

X

-

-

-

-

>

,

-

-

-

-

-

-

-

N

No. 09-4282

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 08-01077—Algenon L. Marbley, District Judge.

Argued: November 16, 2010

Decided and Filed: December 16, 2010 

Before: KENNEDY, SUTTON and McKEAGUE, Circuit Judges.

_________________

COUNSEL

ARGUED: Christopher J. Hogan, ZEIGER, TIGGES & LITTLE LLP, Columbus,

Ohio, for Appellants. Richard N. Coglianese, OFFICE OF THE OHIO ATTORNEY

GENERAL, Columbus, Ohio, for Appellees. ON BRIEF: Christopher J. Hogan, John

W. Zeiger, Marion H. Little, Jr., ZEIGER, TIGGES & LITTLE LLP, Columbus, Ohio,

for Appellants. Aaron D. Epstine, OFFICE OF THE OHIO ATTORNEY GENERAL,

Columbus, Ohio, for Appellees.

_________________

OPINION

_________________

SUTTON, Circuit Judge. This is round two in a ballot-counting dispute arising

from the 2008 elections in Franklin County, Ohio. In the first round, we held that the

1
No. 09-4282 State of Ohio ex rel. Skaggs, et al. v. Brunner, et al. Page 2

defendants could not remove the case from state court to federal court because each of

the claims turned on state law and the parties all hailed from Ohio. Ohio ex rel. Skaggs

v. Brunner, 549 F.3d 468 (6th Cir. 2008). Today, we consider whether the defendants

should pay attorney’s fees for improperly trying to remove the case. See 28 U.S.C.

§ 1447(c). 

I. 

Ohio law provides that a voter may cast a provisional ballot if the voter’s name

does not appear on the list of eligible voters at a polling place. Ohio Rev. Code Ann.

§ 3505.181. Of the 27,000 provisional votes cast in Franklin County during the 2008

elections, about 1,000 had a potential defect: they did not contain the voter’s name and

signature. After the Franklin County Board of Elections identified this problem, two

legal issues emerged: (1) does Ohio law require that a ballot include a name

and signature, see Ohio Rev. Code Ann. § 3505.183(B)(1); and (2) even if it does,

should the ballots be counted because Ohio law has an exemption for mistakes allegedly

attributable to poll workers?

Ohio Secretary of State Jennifer Brunner took the position that the ballots

complied with Ohio law, which prompted two Franklin County voters to file an original

action in the Ohio Supreme Court against the Secretary and the Franklin County Board

of Elections. The “relators,” the name given to claimants who file an action on behalf

of others, sought a writ of mandamus to compel the defendants “to meet their clear legal

duty under Ohio statutes.” R.3 at 4. “No federal law claims,” the complaint added, “are

asserted; rather, Relators seek a writ requiring respondents to comply with the state law

statutory requirements of [Ohio Rev. Code §§] 3505.181, 3505.182, 3505.183, and

3505.18.” Id.

The Secretary nonetheless read the claims as raising issues of federal law and

removed the case to federal court. The relators moved to remand the case to state court,

and the district court denied the motion. Ohio ex rel. Skaggs v. Brunner, 588 F. Supp.

2d 819 (S. D. Ohio. 2008). A few days later, the court granted the Secretary’s motion

for summary judgment. Ohio ex rel. Skaggs v. Brunner, No. 2:08-cv-1077, 2008 WL
No. 09-4282 State of Ohio ex rel. Skaggs, et al. v. Brunner, et al. Page 3

5100684 (S.D. Ohio Nov. 20, 2008). The relators appealed, and we vacated the district

court’s opinion after concluding it lacked subject matter jurisdiction. Ohio ex rel.

Skaggs v. Brunner, 549 F.3d 468 (6th Cir. 2008).

The relators sought attorney’s fees under § 1447(c), and the court denied the

motion. Ohio ex rel. Skaggs v. Brunner, No. 2:08-cv-1077, 2009 WL 3064199 (S.D.

Ohio Sept. 18, 2009). This appeal followed.

II.

“An order remanding the case may require payment of just costs and any actual

expenses, including attorney fees, incurred as a result of removal.” 28 U.S.C. § 1447(c).

This provision gives district courts discretion to grant fees to the opposing party—they

“may” grant fees—if “the removing party lacked an objectively reasonable basis for

seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005). We will

reverse a trial court’s fees decision only if it amounts to an abuse of discretion.

Bartholomew v. Town of Collierville, 409 F.3d 684, 686 (6th Cir. 2005).

In removing the case, the Secretary invoked the district court’s federal-question

jurisdiction, R.1, which allows federal courts to hear cases “arising under” federal law,

28 U.S.C. § 1331. A complaint arises under federal law if it: (1) states a federal cause

of action; (2) includes state-law claims that necessarily depend on a substantial and

disputed federal issue; (3) raises state-law claims that are completely preempted by

federal law; or (4) artfully pleads state-law claims that amount to federal-law claims in

disguise. Mikulski v. Centerior Energy Corp., 501 F.3d 555, 560 (6th Cir. 2007) (en

banc). The Secretary claims that at least one of these grounds, if not several of them,

provided an objectively reasonable basis for removal. Whether they did is not as easy

as the Secretary suggests. 

Federal Cause of Action. The complaint by its terms does not state a federal

cause of action. It says that the Secretary and the Board violated “their clear legal duty

under Ohio statutes,” namely “the state law statutory requirements of [Ohio Revised

Code §§] 3505.181, 3505.182, 3505.183, and 3505.18.” R.3 at 4–5 (emphases added).
No. 09-4282 State of Ohio ex rel. Skaggs, et al. v. Brunner, et al. Page 4

Trying to eliminate any doubt about the point, the complaint disavows any reliance on

federal law: “No federal claims are asserted.” Id. The prayer for relief sings the same

song: it asks for “a writ of mandamus compelling [the Secretary] [1] to correct her

erroneous interpretation of [Ohio Revised Code §§] 3505.183(B)(1)(a) . . . [and]

3505.181,” “[2] to advise the [Board] that any provisional voter must provide the

identification verification information mandated by [Ohio Revised Code §] 3505.181”

and “[3] to reject any [ballot] . . . if the [ballot] does not include both the name and

signature of the voter . . . [as] required by [Ohio Revised Code §] 3505.183(B)(1)(a).”

R.3 at 18–19. A complaint that invokes state law alone, and that mentions federal law

only to disclaim any reliance on it, does not provide a basis for arising-under federal

jurisdiction. Indeed, we have held that a complaint containing a federal-law disclaimer

(like this one) deprives the defendant of an objectively reasonable basis for removal. See

Warthman v. Genoa Twp. Bd. of Trs., 549 F.3d 1055, 1063 (6th Cir. 2008).

Substantial Federal Question. The next possibility exists when a state-law claim

turns on a disputed and substantial federal issue, and exercising jurisdiction would not

upset the traditional scope of the state courts’ jurisdiction. Grable & Sons Metal Prods.,

Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 313, 318 (2005). Here, too, it is difficult to

discern a legitimate basis for removal. There is no federal issue, substantial or

otherwise, embedded in any of the state-law claims. It is not as if the plaintiffs claimed,

say, that the defendant violated a state-law tort—negligence—by violating a federal

standard of care. See Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804, 809–10

(1986). All that the plaintiffs said, and all that they could fairly be construed as saying,

was that the defendants violated “Ohio statutes.” R.3 at 4; see Ohio Rev. Code

§§ 3505.181, 3505.182. 

The Secretary resists the point, arguing that the complaint’s reference to her preelection interpretation of the state statutes—Directive 2008-101—raised a federal issue

because she issued the directive in reference to a federal court’s consent decree. See R.3

at 11–12; Ne. Ohio Coalition for the Homeless v. Brunner, No. 2:06-cv-896 (S.D. Ohio

filed Oct. 24, 2006). But this argument ignores the context in which the complaint refers
No. 09-4282 State of Ohio ex rel. Skaggs, et al. v. Brunner, et al. Page 5

to the directive. The complaint says that the Secretary violated several state statutes, not

the court’s consent decree, R.3 at 4–5, and used the Secretary’s earlier interpretation of

the statutes in the consent decree as evidence that she had violated state law, not the

consent decree, id. at 11–12.

The Secretary’s invocation of the consent decree, at any rate, at most raises

defenses to the action. Yet the plaintiff, not the defendants, remains the master of a

complaint, including the master of what law she opts to invoke in filing a claim. In the

words of Justice Holmes: “Of course, the party who brings a suit is master to decide

what law he will rely upon.” The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25

(1913); see Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). That is why federal

defenses generally do not provide a basis for § 1331 jurisdiction. Louisville & Nashville

R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908). And that is why, more specifically, the

issue-preclusive effect of a prior federal decision (the consent decree) may not convert

a state-law claim (that the Secretary violated state statutes) into a federal claim. Rivet

v. Regions Bank of La., 522 U.S. 470, 476–77 (1998). 

Complete Preemption. The Secretary does not maintain that federal law

completely preempted these state-law claims. And with good reason: the doctrine of

“complete preemption” applies only to Employee Retirement Income Security Act

claims, Metro. Life Ins. Co. v. Taylor, 481 U.S. 58 (1987), Labor Management Relations

Act claims, Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists, 390 U.S. 557

(1968), and National Bank Act claims, Beneficial Nat’l Bank v. Anderson, 539 U.S. 1

(2003). Ohio’s laws about the eligibility of provisional ballots do not implicate any of

these statutes.

Artful Pleading. That leaves the possibility that these state-law claims amounted

to federal claims in disguise. As the Secretary reads the complaint, it says that the

State’s interpretation of Ohio’s election laws caused the claimants’ votes to be diluted,

R.3 at 4–5, and vote dilution establishes a federal claim, see Bush v. Gore, 531 U.S. 98

(2000). But the “artful pleading” doctrine does not apply whenever it is possible to

construe a state-law theory as a federal one. Otherwise, any complaint that invoked
No. 09-4282 State of Ohio ex rel. Skaggs, et al. v. Brunner, et al. Page 6

theories that appear in state and federal law would amount to a federal claim, even if the

complaint invoked only state statutes or state constitutional provisions. Rather, “[t]he

artful pleading doctrine allows removal where federal law completely preempts a

plaintiff’s state-law claim,” Rivet, 522 U.S. at 475, or perhaps (it is not clear after Rivet)

where federal issues necessarily must be resolved to address the state law causes of

action, see Charles Alan Wright et al., Federal Practice & Procedure § 3722.1. The

Secretary’s theory does not satisfy these requirements. An allegation of “vote dilution”

exists at a nose-bleed level of generality—so general that the allegation by itself could

cover any violation of election law, whether contained in municipal, state or federal law,

and whether contained in ordinances, statutes or constitutions. To allege that election

officials have violated a legal requirement with respect to vote counting invariably may

be characterized as a claim of “vote dilution” by some or of “vote aggrandizement” by

others. A complaint’s reference to “vote dilution” thus does not necessarily invoke a

federal cause of action any more than a claim that officials have “violated election law”

does so. In each setting, more information is required, and here the words of the

complaint and the context in which they arise show that the claimants relied only on

state law. 

All of this shows why we would have been inclined to grant the claim for

attorney’s fees had the choice been ours to make in the first instance. As we read the

complaint, it is difficult to identify an objectively reasonable basis for the Secretary’s

removal, whether one looks at each potential ground for removal or aggregates them

together. But the call was not initially delegated to us, and that makes all the difference.

The case calls for abuse-of-discretion review, suggesting a range of plausible

assessments about whether removal was objectively reasonable. See Martin, 546 U.S.

at 139; Bartholomew, 409 F.3d at 686. We have laid out one plausible way to assess the

grounds for removal, but it is not the only one.

Keep in mind that this district court judge not only thought the removal was

objectively reasonable, but he also denied the motion to remand the case to state court.

Skaggs, 588 F. Supp. 2d 819. The point favors the Secretary, as we can assume that
No. 09-4282 State of Ohio ex rel. Skaggs, et al. v. Brunner, et al. Page 7

district courts rarely allow parties to remove cases that were objectively unreasonable

to remove. The point does not end the matter, however, as this court has reversed at

least one district court decision declining to grant fees even after the same judge had

originally denied the motion to remand the case to state court. Ahearn v. Charter Twp.

of Bloomfield, 149 F.3d 1182, 1998 WL 384558, *2–4 (6th Cir. June 18, 1998)

(unpublished table decision), overruled on other grounds, Warthman, 549 F.3d 1055.

A few other considerations cut the Secretary’s way. No one alleges that the Secretary

removed the case to delay litigation or to impose additional litigation costs on the

plaintiffs. Not just the Secretary, but the courts as well, labored under considerable time

pressures to resolve this ballot-counting dispute quickly so that a congressional seat

could be timely filled. Any delay caused by the failed removal could not have exceeded

two weeks. 

One other point deserves mention. In Warthman, this court provided a safe

harbor designed to prevent federal-question removals if the complaint relied only on

state law and if it disclaimed any reliance on federal law. See 549 F.3d at 1063. Yet

Warthman was decided one month after the Secretary removed this case, making it

unfair to hold her accountable for failing to predict the future. Had Warthman already

been on the books at the time and had the Secretary nonetheless removed this action,

however, a different outcome seems likely. Instead of a close case in which it still

plausibly could be said that the district court acted within its discretion in denying fees,

we would have a difficult-to-justify removal. The point of fee-shifting statutes is to

influence litigants’ conduct by making them pay for the costs of improper removals.

Because “[d]iscretion is not a whim,” Martin, 546 U.S. at 139, a post-Warthman removal

in this situation would require fees, Warthman, 549 F.3d at 1060–61 (“[I]n cases where

the removal was not objectively reasonable . . . the district court may exercise its

discretion to award fees or not, keeping in mind . . . the general presumption that fees

should be awarded under such circumstances.”); id. at 1063 (“Including [a disclaimer]

in complaints is an excellent practice . . . because it avoids the procedural delay and

expense of removal and remand.”). 
No. 09-4282 State of Ohio ex rel. Skaggs, et al. v. Brunner, et al. Page 8

III.

For these reasons, we affirm.