F I L E D

United States Court of Appeals

Tenth Circuit

JUL 2 1997

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TIMOTHY P. SUDER,

Plaintiff-Appellee,

v.

BLUE CIRCLE, INC., an Alabama

corporation,

Defendant-Appellant.

No. 96-5214

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D.C. No. 95-CV-946-K)

Submitted on the briefs:

Allen J. Autrey of Allen J. Autrey, P.C., Tulsa, Oklahoma, for Plaintiff-Appellee.

Stephen L. Andrew and D. Kevin Ikenberry of Stephen L. Andrew & Associates,

Tulsa, Oklahoma, for Defendant-Appellant.

Before BRORBY, BARRETT, and LUCERO, Circuit Judges.

BRORBY, Circuit Judge.
1 After examining the briefs and appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The

case is therefore ordered submitted without oral argument.

2 Section 1447(c) provides, in pertinent part, that “[a] motion to

remand the case on the basis of any defect other than lack of subject matter

jurisdiction must be made within 30 days after the filing of the notice of removal

under section 1446(a).”

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Appellant Blue Circle, Inc., appeals the order of the district court assessing

attorneys’ fees pursuant to 28 U.S.C. § 1447(c) for the improper removal of a

retaliatory discharge case. For the reasons stated herein, we affirm.1

Plaintiff Timothy P. Suder, an Oklahoma resident, brought a retaliatory

discharge case in Oklahoma state court against Blue Circle, an Alabama

corporation with its principal place of business in Alabama. Blue Circle removed

the case to the United States District Court for the Northern District of Oklahoma. 

Within thirty days after the filing of the notice of removal, plaintiff filed a motion

to remand. See 28 U.S.C. § 1447(c).2

 

The district court granted the motion to remand and assessed costs and

attorneys’ fees against Blue Circle pursuant to 28 U.S.C. § 1447(c). On appeal,

Blue Circle argues that attorney fees should not be awarded under § 1447(c) when

there is a “colorable basis for the removal.” 

The court’s decision regarding whether a fee award is warranted is

reviewed for abuse of discretion, while the underlying legal analysis is reviewed
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de novo. See Daleske v. Fairfield Communities, Inc., 17 F.3d 321, 323 (10th Cir.

1994). Among the nonremovable actions listed under 28 U.S.C. § 1445 is “[a]

civil action in any State court arising under the workmen’s compensation laws of

such State . . . .” Section 1447(c) states that “[a]n order remanding the case may

require payment of just costs and any actual expenses, including attorney fees,

incurred as a result of the removal.” This court has held that the fee award is

discretionary with the court, and that no showing of bad faith need be made to

justify such an award. See Daleske, 17 F.3d at 324-25. What is required to award

fees, however, is a showing that the removal was improper ab initio. See id. at

324 (noting that “the propriety of the defendant’s removal continues to be central

in determining whether to impose fees”) (quotation omitted). Thus, it was error

for the district court to assess fees against Blue Circle only if its removal to

federal court was proper in the first place. In order to prevail on this argument,

Blue Circle argues that plaintiff’s retaliatory discharge claim did not arise under

the workers’ compensation laws of Oklahoma, thus making the removal proper. 

Whether a retaliatory discharge claim arises under state workers’ compensation

law for purposes of the removal statutes is a question of federal law. See

Humphrey v. Sequentia, Inc., 58 F.3d 1238, 1245 (8th Cir. 1995); see generally,

Grubbs v. General Elec. Credit Corp., 405 U.S. 699, 705 (1972) (noting that
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standards for determining when suits are eligible for removal to federal court are

set by Congress and are not dependent on local law).

Title 58 of the Oklahoma statutory compilation contains the Worker’s

Compensation Act. Section 5 of that title provides:

No person, firm, partnership or corporation may discharge any

employee because the employee has in good faith filed a claim, or

has retained a lawyer to represent him in said claim, instituted or

caused to be instituted, in good faith, any proceeding under the

provisions of [this title], or has testified or is about to testify in any

such proceeding.

As long ago as 1977, the federal district court in Oklahoma had held that claims

brought pursuant to this statute arise under the workers’ compensation laws of

Oklahoma. See Kemp v. Dayton Tire & Rubber Co., 435 F. Supp. 1062, 1063

(W.D. Okla. 1977). We find no basis upon which to disturb that conclusion.

Blue Circle cites Spearman v. Exxon Coal USA, Inc., 16 F.3d 722 (7th Cir.

1994), as support for its argument that plaintiff’s retaliatory discharge claim did

not arise under the worker’s compensation laws of Oklahoma. That case,

however, is distinguishable. In Spearman, the court was careful to point out that

the Illinois law of retaliatory discharge had its genesis, not in any statutory

workers’ compensation scheme, but rather in the general tort law of the state. See

id. at 723, 725.

We agree with the district court that the analysis of the Eighth Circuit in

Humphrey, 58 F.3d 1238, construing a Missouri retaliatory discharge statute,
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applies with equal force to Oklahoma’s retaliatory discharge scheme. In rejecting

Spearman, the Eighth Circuit stated:

Under the plain meaning of the [removal] statute, where

a state legislature enacts a provision within its workers

compensation laws and creates a specific right of action,

a civil action brought to enforce that right of action is,

by definition, a civil action arising under the workers’

compensation laws of that state and therefore § 1445(c) 

applies; under such circumstances, the action would be

non-removable, subject only to the complete preemption

doctrine.

Id. at 1246 (footnote omitted).

We reject Blue Circle’s argument that fees should not be awarded under

§ 1447(c) if there is a “colorable” basis for the removal. The standard is not

whether the basis for the removal was merely “colorable;” the central inquiry is

the “propriety” of the removal, see Daleske, 17 F.3d at 324, a standard much

different than “colorable.” A removal is proper only if it is legitimate. As we

have held above, retaliatory discharge claims arise under Oklahoma’s workers’

compensation law making Blue Circle’s removal of this case to federal court

improper. Once the district court correctly made that determination, it was then

within the court’s discretion to assess just costs and fees. See Excell, Inc. v.

Sterling Boiler & Mechanical, Inc., 106 F.3d 318, 321-22 (10th Cir. 1997)

(rejecting argument that award was erroneous because party removed under good

faith interpretation of forum selection clause). We find no abuse of discretion on
3 This is especially true in light of the fact that Blue Circle had been

informed by federal district courts in Oklahoma on at least two prior occasions

that removal of retaliatory discharge actions was improper because such actions

arose under state workers’ compensation laws. See Hanna v. Blue Circle Cement,

Inc., No. 92-C-1142-B (N.D. Okla. Mar. 18, 1993); Thompson v. Blue Circle,

Inc., No. 84-C-79-E (N.D. Okla. June 8, 1984).

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the part of the district court in assessing fees against Blue Circle for its improper

removal.3

The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED.