IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-41285

RODOLFO GUTIERREZ

Plaintiff-Appellant

v.

RAMIRO FLORES, AURELINO GARCIA, HECTOR GALLARDO, and

DEBORAH GODING

Defendants-Appellees

Appeal from the United States District Court 

for the Southern District of Texas

Before BARKSDALE, BENAVIDES, and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

This case involves a dispute among members of the American Federation

of Government Employees, Local 2142 (the “union”). Appellant Rodolfo

Gutierrez (“Gutierrez”), a former Vice President of the union, brought suit in

Texas state court alleging libel, libel per se, and intentional infliction of

emotional distress. Appellees removed the action to federal district court,

alleging that Gutierrez’s claims were completely preempted by federal law under

the Civil Service Reform Act of 1978, 5 U.S.C. § 7101 et seq. (“CSRA”). The

district court denied Gutierrez’s motion to remand the case to state court and

subsequently granted Appellees’ motion for summary judgment. Based upon the

United States Court of Appeals

Fifth Circuit

F I L E D

September 22, 2008

Charles R. Fulbruge III

Clerk
No. 07-41285

2

unique circumstances presented here, we find that the CSRA does not

completely preempt Gutierrez’s claim. Therefore, the motion to remand should

have been granted. Because we find that no federal subject matter jurisdiction

existed, we vacate the district court's judgment and remand this case to the

district court with instructions to remand the cause to Texas state court.

I.

Gutierrez is a federal government employee at the Corpus Christi Army

Depot, located at Naval Air Station–Corpus Christi. Ramiro Flores, Aurelino

Garcia, Hector Gallardo, and Deborah Goding (collectively, “Appellees”) are also

federal government employees at the Corpus Christi Army Depot. At all

relevant times, Gutierrez, Flores, Garcia, Gallardo, and Goding were members

of the union. 

From 1997–2000, while Gutierrez was a Vice President of the union, he

was responsible for renting meeting rooms for the monthly union meetings.

Gutierrez received a check for $250 from the union treasurer, of which $95 was

for the room rental cost and $155 was for the cleaning deposit. Gutierrez would

clean the room himself after the meetings and retain the $155 deposit. In

January 2000, a new union board was elected, including Jose Gonzales as

President, Kenneth Weeks as Chief Steward, and Deborah Goding as Secretary.

At the January 2000 meeting, Gutierrez admitted to keeping the cleaning

deposit, and the newly elected board asked him to discontinue the practice,

which he did. Goding contacted the U.S. Department of Labor (“DOL”) and the

Federal Bureau of Investigation (“FBI”) regarding Gutierrez’s actions. The DOL,

FBI, and Department of Defense, Criminal Investigations Division (“CID”)

conducted a joint investigation. In 2001, DOL and FBI investigators interviewed

Goding and told her “we know” that Gutierrez retained the cleaning deposits. 

On June 12, 2002, DOL and CID investigators interviewed Gutierrez.

Gutierrez signed a voluntary statement stating, “I kept the difference,
No. 07-41285

1 An administrative law judge ofthe MSPB ultimately reversed Guiterrez’s suspension,

finding that “the agency has not proven by preponderant evidence that the appellant’s actions

regarding the cleaning deposit money was done without approval of the union.”

2 The letter was signed by Flores, Garcia, and Gallardo. Goding wrote the letter, but

it is unclear from the record why she did not sign the letter. 

3

approximately $155 per month, for my own personal benefit and use.”

Furthermore, the statement provided that, “I’ve been informed that the total

amountthat I kept without membership consent or approval exceeds $4000.” On

October 2, 2002, the DOL issued a “report of investigation” summarizing its

findings, noting that “[e]vidence established that between November 1997 and

January 2000, while on government property, Gutierrez embezzled notless than

$4325 by retaining the union’s deposit ($150) on the monthly membership

meeting room rather than returning it to the local after the meeting.”

Notwithstanding such findings, the government declined to prosecute Gutierrez.

In the spring of 2004, the Department of the Army (the “Army”)

suspended Gutierrez for thirty days for retaining the cleaning deposits.

Gutierrez–still a Vice President of the union–challenged the suspension via an

appealto the Merit Systems Protection Board (“MSPB”).1 Goding was a witness

for the Army at the MSPB hearing. Shortly before the hearing, Goding learned

from Army personnel that Gutierrez had signed the voluntary statement in June

2002 and she learned from a former union official that the Army had taken

personnel action against Gutierrez. At the hearing, Gutierrez was represented

by an employee of the union’s national office. 

Goding was upset that Gutierrez remained a union official and that union

funds were spent on his representation. Goding spoke with three other union

members–Flores, Garcia, and Gallardo–about this matter. On June 23, a letter

was mailed to the DOL, John Cage (the union’s National President), and Jose

Gonzales (the union's Local President).2 The letter stated that Gutierrez “was

found guilty by the [DOL] and [FBI] for Embezzlement of Union monies for
No. 07-41285

3 The district court concluded “that this case presents a federal question and that

remand is improper . . . for reasons that will be forthcoming.” However, the district court did

not issue a subsequent order explaining its rationale. 

4 We note the apparent conflict presented by the grant of summary judgment on state

law grounds after the first district court judge concluded that removal was proper due to

complete preemption by federal law. However, we need not address this issue because, as

4

approximately $4000.00.” The letter also asked why “a representative” was

provided “at the expense ofthe Union” and why Gutierrez was not removed from

union office when he had “signed a statement for the [DOL] admitting he took

these funds and . . . never attempted to reimburse [the union].” The letter was

not shown to any other person, including other union members. 

In June 2005, Gutierrez brought suit against Flores, Garcia, and Gallardo

in Texas state court alleging libel, libel per se, and intentional infliction of

emotion distress as a result of the June 2004 letter. On July 1, 2005, Goding

sent an e-mail to Kenneth Weeks, then Chief Steward of the union, stating that

the union should provide Flores, Garcia, and Gallardo with representation. The

e-mail stated that Gutierrez committed “theft” and had been found “guilty.” 

On July 14, 2005, the case was removed to federal district court under the

theory that complete preemption of the claims by the CSRA created federal

question jurisdiction. The district court denied Gutierrez’s motion for remand.3

Gutierrez amended his complaint on December 22, 2006, by adding Goding as

a defendant and alleging that the July 1 e-mail from Goding to Weeks was a

defamatory document. After the case was transferred to another district court

judge, Appellees filed a motion for summary judgment. In his opposition to the

motion for summary judgment, Gutierrez expressly abandoned his intentional

infliction of emotional distress claim. 

By order dated November 16, 2007, the district court granted Appellees’

motion for summary judgment, finding that, under Texas law, Gutierrez could

not establish that Appellees were liable for libel.4 Specifically, the district court
No. 07-41285

discussed below, we find that the case was not properly removed in the first instance. 

5

held that because Appellees enjoyed a qualified privilege, Gutierrez had to

establish actual malice, which he failed to do. Furthermore, the district court

held that “there is no evidence that [Appellees’] statements were objectively

untrue.” Gutierrez timely appealed from the denial of his motion to remand and

the grant of summary judgment for Appellees. 

II.

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

Campbell v. Stone Ins., Inc., 509 F.3d 665, 669 (5th Cir. 2007). We also review

the grant of summary judgment de novo. Id. Summary judgmentis appropriate

only where “there is no genuine issue as to any material fact and . . . the movant

is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c).

III.

Gutierrez argues that the district court did not have federal question

jurisdiction because no federal question is presented on the face of his wellpleaded complaint. Accordingly, Gutierrez argues that the district court should

have remanded. We agree. 

A. Removal Jurisdiction

A district court has removal jurisdiction in any case where it has original

jurisdiction. 28 U.S.C. § 1441(a). A district court has original federal question

jurisdiction over “all civil actions arising under the Constitution, laws, or

treaties ofthe United States.” 28 U.S.C. § 1331. The defendant seeking removal

bears the burden of demonstrating that a federal question exists. In re Hot-Hed,

Inc., 477 F.3d 320, 323 (5th Cir. 2007). Because removal raises significant

federalism concerns, the removal statute is strictly construed “and any doubt as

to the propriety of removal should be resolved in favor of remand.” Id.
No. 07-41285

5

“‘Complete preemption,’ which creates federal removal jurisdiction, differs from more

common ‘ordinary preemption’ (also known as ‘conflict preemption’), which does not.” Johnson

v. Baylor Univ., 214 F.3d 630, 632 (5th Cir. 2000). As the Johnson court noted: 

Ordinarily, the term federal preemption refers to ordinary preemption, which

is a federal defense to the plaintiff’s suit and may arise either by express

statutory term or by a direct conflict between the operation of federal and state

law. Being a defense, it does not appear on the face of a well-pleaded complaint,

and, thus, does not authorize removal to a federal court. By way of contrast,

complete preemption is jurisdictional in nature rather than an affirmative

defense to a claim under state law. As such, it authorizes removal to federal

court even if the complaint is artfully pleaded to include solely state law claims

for relief or if the federal issue is initially raised solely as a defense.

Id. (quoting Heimann v. Nat’l Elevator Indus. Pension Fund, 187 F.3d 493, 500 (5th Cir.

1999)). 

6

Under the well-pleaded complaint rule, “a federal court has original or

removal jurisdiction only if a federal question appears on the face of the

plaintiff’s well-pleaded complaint; generally, there is no federal jurisdiction if the

plaintiff properly pleads only a state law cause of action.” Bernhard v. Whitney

Nat’l Bank, 523 F.3d 546, 551 (5th Cir. 2008). “[T]he fact that federal law may

provide a defense to a state claim is insufficient to establish federal question

jurisdiction.” Id. at 550. 

In his original complaint, Gutierrez pleaded libel, libel per se, and

intentional infliction of emotional distress. These causes of action arise under

Texas statutory and common law. See Tex. Civ. Prac. & Rem. Code Ann. §

73.001 (2005) (libel); Doubleday & Co. v. Rogers, 674 S.W.2d 751, 759 (Tex. 1984)

(libel per se); Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993) (intentional

infliction of emotional distress). Appellees correctly note, however, that “[a]

corollary to the well-pleaded complaint doctrine is that Congress may so

completely preempt a particular area that any civil complaint raising this select

group of claims is necessarily federal in character.”5 Johnson v. Baylor Univ.,

214 F.3d 630, 632 (5th Cir. 2000) (internal quotation omitted). 
No. 07-41285

7

This Circuit has stated that in order to establish complete preemption, the

defendant must show that: 

(1) the statute contains a civil enforcement provision that creates a

cause of action that both replaces and protects the analogous area

of state law; (2) there is a specific jurisdictional grant to the federal

courts for enforcement of the right; and (3) there is a clear

Congressional intent that claims brought under the federal law be

removable.

Id. (internal citation omitted). This test for complete preemption was

subsequently clarified by the Supreme Court in Beneficial National Bank v.

Anderson, 539 U.S. 1 (2003), which shifted the focus of the last part of the test

from Congress's intentthatthe claim be removable,to Congress's intentthatthe

federal action be exclusive. Bernhard v. Whitney Nat. Bank, 523 F.3d 546, 553

(5th. Cir. 2008) (citing Beneficial, 539 U.S. at 11); see also Hoskins v. Bekins Van

Lines, 343 F.3d 769, 776 (5th. Cir. 2003). 

Appellees argue that the CSRA completely preempts Gutierrez's state law

causes of action. In order to determine whether, under the first portion of the

Johnson test, the CSRA contains a civil enforcement provision that creates a

cause of action that both replaces and protects the analogous area of state law

encompassing Gutierrez's claims, it is necessary to examine the authority relied

on by the Appellees to support their claim of complete preemption. Thus, we

now turn to a discussion of the CSRA. 

B. The Civil Service Reform Act

The CSRA “comprehensively overhauled the civil service system.” Lindahl

v. Office of Pers. Mgmt., 470 U.S. 768, 773 (1985). The purpose of the statute is

to “prescribe certain rights and obligations of the employees of the Federal

Government and to establish procedures which are designed to meet the special

requirements and needs of the Government.” 5 U.S.C. § 7101(b). The CSRA
No. 07-41285

6 The union consists exclusively of federal government employees. However, the

national labor organization it is affiliated with, American Federation of Government

Employees, AFL-CIO, is a “mixed” union because it represents both government employees and

private sector employees. See Reed v. Sturdivant, 176 F.3d 1051, 1052 (8th Cir. 1999).

Gutierrez does not dispute that the union–because it represents only government

employees–is a “labor organization” under the CSRA but is not a “labor organization” under

the Labor Management Reporting and Disclosure Act (“LMRDA”). Compare 5 U.S.C. § 7103

(CSRA definition) with 29 U.S.C. § 402 (LMRDA definition); see also Reed, 176 F.3d at 1052-54.

7 Section 2302(a)(2)(A) defines “personnel action” to include, inter alia, appointments,

promotions, transfers, performance evaluations, orders for psychiatric testing, and “any other

significant change in duties, responsibilities, or working conditions.” 

8

governs, inter alia, collective bargaining, union representation, and unfair labor

practices in the federal government.

Appellees argue that the letter and e-mail at issue were intra-union

communications of a CSRA union and, thereby, were protected under the CSRA

such that any claim arising therefrom is completely preempted.6 Appellees’

preemption argument primarily relies upon appellate cases holding that the

CSRA preempts federal government employees’ federal and state law causes of

action arising from adverse “personnel actions.”7 See 5 U.S.C. §2302. For

example, this Court held in Rollins v. Marsh that the CSRA preempted a

government employee’s causes of action–including defamation–arising from his

employment suspension. 937 F.2d 134, 137-40 (5th Cir. 1991); see also, e.g.,

Ayrault v. Pena, 60 F.3d 346 (7th Cir. 1995); Roth v. United States, 952 F.2d 611

(1st Cir. 1991); Saul v. United States, 928 F.2d 829 (9th Cir. 1991). The Rollins

court explained that “[e]very circuit facing this issue has concluded that the

remedies provided by the CSRA preempt state-law remedies for adverse

personnel actions.” 937 F.2d at 140. Furthermore, the Supreme Court found

that the CSRA preempts a federal government employee’s suit under the First

Amendment and Bivens resulting from his demotion and reduction in pay. Bush

v. Lucas, 462 U.S. 367 (1983). The Supreme Court explained that “[b]ecause

such claims arise out of an employment relationship that is governed by
No. 07-41285

8 We note that the Army suspended Gutierrez for thirty days as a result of the

DOL/FBI/CID investigation. That adverse employment action is not in dispute, however, and

this case solely concerns the allegedly defamatory letter and e-mail between members of the

union. 

9

comprehensive procedural and substantive provisions giving meaningful

remedies against the United States, . . . it would be inappropriate for us to

supplement that regulatory scheme with a new judicial remedy.” Id. at 368

(emphasis added). 

Appellees’ reliance on personnel action cases is misplaced. Such cases rely

upon Title II of the CSRA, 5 U.S.C. §2302 et seq., which concerns adverse

employment actions, whereas this case arises from Title VII of the CSRA, 5

U.S.C. § 7101 et seq., regarding union affairs. Rollins, Bush, and the many other

cases cited by Appellees concern disputes arising from the employment

relationship wherein a government employer or supervisor takes an action

against a government employee that allegedly violated the merit principles

outlined in Title II of the CSRA. See Roth, 952 F.2d at 614 (noting that “a

prohibited personnel practice” under the CSRA is “a personnel action violative

of the merit principles”). In contrast, this case does not involve the employment

relationship or any adverse employment action.8 Gutierrez is suing four

members of the union solely based upon union-related activities. Therefore, the

finding of complete preemption in the aforementioned cases does not dictate our

holding here. 

Appellees next rely upon the Supreme Court’s holding in Karahalios v.

National Federation of Federal Employees, Local 1263. 489 U.S. 527 (1989). In

Karahalios, the Supreme Court determined whether Title VII of the CSRA

“confers on federal employees a private cause of action against a breach by a

union representing federal employees of its statutory duty of fair

representation.” Id. at 529. The Court noted that 5 U.S.C. § 7114(a)(1) creates
No. 07-41285

9 Sections 7116(b)(1)-(8) list actions of a labor organization that constitute unfair labor

practices. The actions listed in subparagraphs (1) through (7) are not applicable in Karahalios

or this case. Thus, for an action to constitute an unfair labor practice it must fall within the

catch-all provision of subparagraph (8), providing that it is an unfair labor practice “to

otherwise fail or refuse to comply with any provision of this chapter.” 5 U.S.C. § 7116(b)(8).

10 Section 7118(a)(1) provides that:

If any agency or labor organization is charged by any person with having

engaged in or engaging in an unfair labor practice, the General Counsel shall

investigate the charge and may issue and cause to be served upon the agency

or labor organization a complaint. In any case in which the General Counsel

does not issue a complaint because the charge fails to state an unfair labor

practice, the General Counsel shall provide the person making the charge a

written statement of the reasons for not issuing a complaint.

10

a duty of fair representation for labor organizations. Id. at 531. The Court

found that, under Title VII, “a breach of the duty of fair representation is an

unfair labor practice, for it provides that it is ‘an unfair labor practice for a labor

organization . . . to otherwise fail or refuse to comply with any provision of this

chapter.’”9Id. at 532 (quoting 5 U.S.C. § 7116(b)(8)). Under § 7118(a)(1), “unfair

labor practice complaints” are adjudicated by the Federal Labor Relations

Authority (“FLRA”).10 Id. Finding that the duty of fair representation “is

expressly recognized in the” CSRA and “an administrative remedy for its breach

is expressly provided for before the FLRA,” the Supreme Court concluded that

“neither the language nor the structure of the Act shows any congressional

intent to provide a private cause of action to enforce federal employees unions’

duty of fair representation.” Id. at 533. Therefore, the plaintiff’s claim that the

union violated its duty of fair representation had to be brought before the FLRA.

Id. at 536–37. 

Appellees argue that Karahalios stands for the proposition that the

comprehensive regulatory scheme outlined in the CSRA precludes an employee

from suing his union. This contention is accurate when an employee alleges that

his union committed an “unfair labor practice.” See id. at 532; see also
No. 07-41285

11

Montplaisir v. Leighton, 875 F.2d 1, 3 (1st Cir. 1989) (finding that employees’

state law malpractice claims against union lawyers constituted “unfair labor

practice charges” such that claim must be brought before FLRA). Section 7118

provides that “any agency or labor organization” charged “with having engaged

in or engaging in an unfair labor practice” shall be investigated by the General

Counsel of the FLRA. 5 U.S.C. § 7118(a)(1) (emphasis added). The section then

provides a detailed administrative scheme to be followed in such actions before

the FLRA. See 5 U.S.C. §7118(a)(2)-(8). 

Appellees’ argument fails here because Gutierrez does not allege that

Appellees or the union committed an “unfair labor practice.” As explained above,

the CSRA provides that it is an unfair labor practice “to otherwise fail or refuse

to comply with any provision of this chapter.” 5 U.S.C. § 7116(b)(8). Unlike the

plaintiffs in Karahalios and Montplaisir, Gutierrez is not alleging that Appellees

violated a duty established under the CSRA. Rather, on the face of his wellpleaded complaint, he alleges that Appellees’ letter and e-mail were defamatory

and intended to inflict emotional distress. Nothing in the CSRA pertains to this

specific scenario. Accordingly, because Gutierrez does not allege an “unfair labor

practice,” Karahalios does not govern this case. 

Finally, Appellees argue that § 7120 of the CSRA provides the basis for

complete preemption in this context. Section 7120, entitled “[s]tandards of

conduct for labor organizations,” establishes the standards a labor organization

must meet in order to be recognized by a government agency. These standards

include, inter alia, “the prohibition of business or financial interests on the part

of organization officers and agents which conflict with their duty to the

organization and its members.” 5 U.S.C. § 7120(a)(3); see also 29 C.F.R. §

458.31. Section 7120(d) provides that “[c]omplaints of violations of this section

shall be filed with the Assistant Secretary [of Labor for Labor Management

Relations].” Appellees argue that Gutierrez’s retention of union funds was a
No. 07-41285

11 The same logic applies to Appellees’ argument that their actions are protected

because they fall under union members’ protected free speech rights under 29 C.F.R. §

458.2(a)(2). This argument constitutes a defense and, therefore, cannot be a predicate for

removal. 

12

“financial interest . . . in conflict with . . . [his] duty to the organization” and,

thereby, violated § 7120(a)(3). Accordingly, Appellees argue, the CSRA provides

that this case should be brought before an administrative body and complete

preemption is established. 

Even assuming that Gutierrez’s actions violated §7120(a)(3), complete

preemption would not be established. Appellees’ invocation of § 7120 merely

constitutes a possible defense for Appellees’ decision to send the letter and e-mail

and does not establish that the CSRA completely preempts Gutierrez’s claims.11

Appellees argue that because Gutierrez violated § 7120(a)(3) they were entitled

to send the letter and e-mail–i.e., they raise a defense. As discussed above,

however, it is well established that “the fact that federal law may provide a

defense to a state claim is insufficient to establish federal question jurisdiction.”

Bernhard, 523 F.3d at 550. Whether Gutierrez obtained a financial interest in

violation of § 7120 bears no relation to whether Gutierrez’s state law claims

alleged that an “agency or labor organization . . . engag[ed] in an unfair labor

practice” under § 7118(a)(1). 

In sum, because this case does not concern an adverse personnel action or

an unfair labor practice, the cases Appellees rely upon are inapposite. Appellees

have not satisfied the first portion of the complete preemption test—that the

CSRA contains a civil enforcement provision that creates a cause of action that

replaces and protects Gutierrez's state law claims for libel, libel per se, and

intentional infliction of emotional distress. Based upon the unique

circumstances presented here and the particular cause of action atissue, we find

that Appellees have not met their burden of establishing that the CSRA

completely preempts Gutierrez’s claim. Therefore, federal question jurisdiction
No. 07-41285

13

is absent and the case should have been remanded to state court. In so holding,

we do not make any determination as to the merits of Gutierrez’s state law

claim. 

IV.

In light of the foregoing, we VACATE the judgment of the district court

and REMAND with instructions to remand the case to state court.