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United States Court of Appeals,

Fifth Circuit.

No. 95-10645

Summary Calendar.

Jean K. HERRON, Plaintiff-Appellant,

v.

CONTINENTAL AIRLINES, INC., and Peter Armstrong, DefendantsAppellees.

Jan. 23, 1996.

Appeal from the United States District Court for the Northern

District of Texas.

Before KING, SMITH and BENAVIDES, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Jean Herron appeals the dismissal of her claims against

Continental Airlines, Inc. ("Continental"), and Peter Armstrong.

Because we find that the district court lacked jurisdiction, we

vacate and remand to the district court with instructions to remand

to state court.

I.

Armstrong is a private process server whom Continental

enlisted to serve process on Herron's husband at his Dallas home.

When Armstrong arrived, Mrs. Herron was home alone, five months

pregnant, and resting because of complications from the pregnancy.

Armstrong repeatedly rang the Herron's buzzer, even after Mrs.

Herron informed him that her husband was not at home. Armstrong

finally left, but only after shining a bright light into the home.

The following day, as Mrs. Herron was entering her driveway,
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Armstrong served process by putting papers under her windshield

wiper. According to Mrs. Herron, Armstrong "flashed something

shiny in his hand" and "yelled something." Mrs. Herron now alleges

that Armstrong's efforts caused her to become enraged and

disoriented and to begin experiencing stomach cramps.

Mrs. Herron sued in state court against Armstrong and

Continental, alleging only state-law tort claims. The defendants

removed to federal court, and the district court dismissed Herron's

claims.

II.

Herron argues that the district court did not have

jurisdiction over her state-law claims and should have granted her

motion to remand to state court. We review de novo a denial of

remand after removal. Burden v. General Dynamics Corp., 60 F.3d

213, 216 (5th Cir.1995); Leffall v. Dallas Indep. Sch. Dist., 28

F.3d 521, 524 (5th Cir.1994). Removal statutes are strictly

construed against removal. Id. at 524; Brown v. Demco, Inc., 792

F.2d 478, 482 (5th Cir.1986).

The defendants maintain that the district court had

jurisdiction for two reasons. First, they argue that Armstrong, as

a process server, was an officer of the court and entitled to

removal under 28 U.S.C. § 1442(a)(3), which permits the removal of

a case when the defendant is "[a]ny officer of the courts of the

United States, for any act under color of office or in the

performance of his duties...." Neither this section nor any other

federal statute defines the term "officer of the court." No other
 

1But see In re Betts, 165 B.R. 233 (Bankr.N.D.Ill.1994)

(holding that a court-appointed special process server was

entitled to quasi-judicial immunity). 

 

2We do not attempt to fashion a definition of "officer of

the court," nor do we opine as to whether attorneys are "officers

of the courts of the United States" within the meaning of § 1442. 

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court of appeals has addressed the issue of whether a private

process server is an "officer of the court" within the meaning of

§ 1442.1

We conclude that Armstrong was not an officer of the court.

Our decision is guided by Cammer v. United States, 350 U.S. 399, 76

S.Ct. 456, 100 L.Ed. 474 (1956), holding that an attorney was not

a court "officer" within the ordinary meaning of that term:

Certainly nothing that was said in Ex Parte Garland[, 4 Wall

333, 18 L.Ed. 366 (1866) ] or in any other case decided by

this court places attorneys in the same category as marshals,

bailiffs, court clerks or judges. Unlike these officials a

lawyer is engaged in a private profession, important though it

be to our system of justice. In general he makes his own

decisions, follows his own best judgment, collects his own

fees and runs his own business. The word "officer" as it has

always been applied to lawyers conveys quite a different

meaning from the word "officer" as applied to people serving

as officers within the conventional meaning of that term. We

see no reason why the category of "officers" subject to

summary jurisdiction of a court under § 401(2) should be

expanded beyond the group of persons who serve as conventional

court officers and are regularly treated as such in the laws.

Id. at 405, 76 S.Ct. at 459 (citations omitted). Like the attorney

in Cammer, a private process server "makes his own decisions,

follows his own best judgment, collects his own fees and runs his

own business." He is not a conventional court officer as are

"marshals, bailiffs, court clerks or judges." We therefore

conclude that private process servers are not "officers of the

courts of the United States" within the meaning of § 1442.2
 

3Section 1442(a)(3) requires both that the defendant be an

"officer of the court" and that he raise a federal defense. 

Because Armstrong is not an "officer of the court," we find it

unnecessary to decide whether he raised a federal defense. 

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The cases cited by the defendants are unconvincing. See Klein

v. Robinson, 328 F.Supp. 417, 420 (E.D.N.Y.1971), aff'd, 468 F.2d

619 (2d Cir.1972) (per curiam); Simpson v. McVey, 217 F.Supp. 575

(S.D.Ohio 1963). These cases all involved lawsuits against federal

marshals engaged in serving process. Marshals do fall within the

conventional meaning of "officers of the court," as Cammer

recognized. 350 U.S. at 405, 76 S.Ct. at 459.3

The defendants also maintain that the district court had

jurisdiction under 28 U.S.C. § 1441(b), which declares that federal

courts "have original jurisdiction founded on a claim or right

arising under the ... law ... of the United States." The

defendants maintain that Herron's complaint, although alleging only

Texas tort claims, was founded on a claim or right arising under

the law of the United States, inasmuch as the alleged tortious

conduct occurred while Armstrong was serving process pursuant to

FED.R.CIV.P. 4.

This argument is without merit. "Not every question of

federal law emerging in a suit is proof that a federal law is the

basis of the suit." Gully v. First Nat'l Bank, 299 U.S. 109, 115,

57 S.Ct. 96, 99, 81 L.Ed. 70 (1936). A claim "arises under"

federal law when federal law supplies an essential element of the

claim. Id. "[I]t must appear from the complaint that the
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construction of a federal statute will have an adverse effect on

the right of recovery if the statute is construed in one way rather

than another way." Eastern Air Lines, Inc. v. Flight Eng'rs Int'l

Ass'n, 340 F.2d 104, 106 (5th Cir.) (quoting Dickson v. Edwards,

293 F.2d 211, 215 (5th Cir.1961) (en banc)), cert. denied, 382 U.S.

811, 86 S.Ct. 23, 15 L.Ed.2d 59 (1965). Rule 4 does nothing more

than describe the procedure for serving process. It does not

supply an essential element of any of Herron's state-law tort

claims, nor is the construction of rule 4 likely to have an adverse

effect on her right of recovery. Removal was not proper under §

1441.

Because the court lacked jurisdiction over Herron's state-law

claims, it did not have the power to dismiss those claims. The

judgment of dismissal is VACATED, and this case is REMANDED to the

district court with instructions to remand to state court.