United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 96-3092MN

_____________ National Association for the * Advancement of Colored People, * Minneapolis Branch on behalf of * themselves and all others similarly * situated; Bryston Hill, by his next friend * Lisa Hill; Sophie Krahnke, by her next * friends Steven Krahnke and Jane * McLeod; Miquel McElroy, by his next * friend Annie Pearl McElroy; Gregory * McFarland, by his next friend Linda * McFarland; Solveig Mebust; Anna * Mebust, by their next friends Bruce * On Remand from the Supreme Court Lynn Mebust and Kirsten Ann Scribner * of the United States. Mebust; Diamond Porter, by his next * friend Jamie Porter, *
* Appellants, *

*
v. *
* Metropolitan Council, a Public Body * Corporate and Politic, *
* Appellee. *

_____________ Filed: May 29, 1998

_____________ Before McMILLIAN, FAGG, and HANSEN, Circuit Judges.

_____________-2-

FAGG, Circuit Judge.
Our earlier opinion in this case contained two independent rulings. First, we held the district court properly used its power under the All Writs Act to take jurisdiction

over s tate-law claims filed in Minnesota state court that threatened the integrity of an earl ier federal consent decree. See NAACP, Minneapolis Branch v. Metropolita n Council , 125 F.3d 1171, 1173-74 (8t h Cir. 1997) ( NAACP ). Second, we affirmed the district court’s later grant of the Metropolitan Counci l’s motion to dismiss those claims as pre cluded by an earlier federal judgment. See id. at 1174-75. In Rivet v. Regions Bank of Louisiana , 118 S. Ct. 921 (1998), the Supreme Court held that Federa ted Dep’t Stores, Inc. v. M oitie , 452 U.S. 394, 397 n.2 (1981), did not authorize the removal of stat e-law claims to federal court based on an affirmative defense of claim preclusion. Th e Supreme Court then vacated and remanded our decision in NAACP for furthe r consideration in light of Rivet

. See NAACP v. Metropolitan Council , 118 S. Ct. 1162 (1998). Because we upheld the district court’s decision to take juris diction of the statelaw claims in NAACP based on the All Writs Act, not on Moitie or claim preclusion,

we conclude our decision is not at odds with the Court’s holding in Rivet . Thus, we reinstate our earlier decision and again affirm the district court.

At issue i n Rivet

was the power of federal courts to exercise federal-questio n removal ju

risdiction under the artful pleading doctrine articulated in Moitie , 452 U.S. at 397 n.2, based on a removing party’s contention the removed state-law claim i s pre cluded by an earlier federal judgment. In Moitie , seven plaintiffs filed federa l antitrust actions in federal district court. The consolidated suits were d ismissed for lack of standing. Two of the plaintiffs, Moitie and Brown, refiled in state court, basing their claim s exclusively on state law. The defendants removed these lawsuits to federa l distr ict court, which denied Moitie’s and Brown’s motion to remand and dismisse d their claims as precluded by the earlier judgment. See id. at 395-97. On appeal, the Ninth Circuit upheld the district court’s removal jurisdiction, see id. at 397 n.2, bu t reversed its res judicata ruling, see id. at 397. The Supreme Court then reversed the-3-

Nint h Circuit on the res judicata issue, see id. at 402, but agreed “at least some o f [Moitie’s and Brown’s state-law] claims had a sufficient federal character to support removal,” id

. at 397 n.2. The Court declined to question the district court’s factua l fin ding that Moitie and Brown “had attempted to avoid removal jurisdiction b y ‘artful [ly]’ casting their ‘essentially federal law claims’ as state-law claims.” Id

. (alteration and internal quotations in original).

After Moiti e the circuit courts attempted to determine what it is that gives a state-law claim a

sufficiently federal character to warrant removal under footnote two of the Court’s opinion. Some circuits found the necessary federal character in th e fe deral law of claim preclusion. On this view, Moitie authorizes removal “where a plaintiff files a state cause of action completely precluded by a prior federal judgment

on a q uestion of federal law.” Carpenter v. Wichita Falls Indep. Sch. Dist. , 44 F.3 d 362, 370 (5th Cir. 1995); accord In re Brand N ame Prescription Drugs Antitrust Litig. , 123 F.3d 599, 612 (7th Cir. 1997) (removal allowed under Moitie where “t he sole basis for filing a state suit is to get around . . . a federal judgment”), cert. denied sub nom. Abbott Lab. v. Huggins , 118 S. Ct . 1178 (1998); Sullivan v. First Affiliated Sec., Inc. , 813 F.2 d 1368, 1376 (9th Cir. 1987) (holding Moitie permits removal only “of stat e claims precluded by the res judic ata effect of a federal judgment”); Ultramar Am. Ltd.

v. Dwelle , 900 F.2d 1412, 1415 (9th Cir. 1990) (clarifying that the earlier federa l jud gment must have resolved questions of federal law). The Second Circuit took a diffe rent approach to Moitie ’s artful pleading doctrine, emphasizing choice of forum. See T ravelers Indem. Co. v. Sarkisian , 794 F.2d 754, 757-61 (2d Cir. 1986). Noting tha t preclusion-based removal “would seem to violate the well-established rule tha t removal ju risdiction may not rest on a federal defense,” id. at 761 n.10, the Secon d Circuit held Moitie authorizes removal where a plaintiff first elects to bring a federal claim in federal court, and then files in state court a state-l aw claim whose elements are virtually identical to those of the earlier fed eral claim, see id. at 760-61. In the Second Circuit’s view, footnote two in Moitie stands for the proposition that a plaintiff who-4-

elects to proceed in federal court “[is] no t free to abuse the dual court system” by later refiling a practically identical lawsuit in state court, artfully pled under state law. Id. at 761.
Recognizing “ Moitie ’s enigmatic footnote . . . has caused considerable confusion in t he circuit courts,” Rivet , 118 S. Ct. at 926 (internal quotations omitted), th e Supre me Court in Rivet

clarified the footnote. Rivet concerned a state-law-base d property dispute filed in state court after a federal Bankruptcy Court had issued orders

conc erning the same parcel of property. See id. at 924. Relying on federal clai m preclusion, the Rivet

defendants removed the state-court acti on to federal district court, which denied the plaintiffs’ motion to remand and granted the defenda nts’ cross-motion for summary j udgment. See id. The district court based both of its rulings on th e claim-preclusive effect

of the Bankruptcy Court’s orders. See id. Unlike in NAACP , where we upheld under the All Writs Act the distric t court’s jurisdiction over state-law clai ms that threatened the integrity of a federal consent decree the court wa s supervising, the Fifth C ircuit in Rivet affirmed the district court’s removal jurisdiction “under the artful pleading exception to the well-pleaded complaint doctrine,” Rivet v. Regions B ank of Louisiana, F.S.B. , 108 F.3d 576, 589 (5th Cir. 1997), because th e removedstate-law claim was “‘completely precluded by a prior federal judgment on

a question of

federal law,’” id. at 586 (quoting Carpenter , 44 F.3d at 370). Th e Suprem e Court disagreed with the Fifth Circuit’s decision, holding “removal i s improper in such a case.” See Rivet , 118 S. Ct. at 923. Claim preclusion, the Court pointed out, is an affirmative defense, and “‘a case may not be removed to federal court

on the basis of a federal defense.’” Id. at 925 (quoting Franchise Tax Bd. v

. Construction Laborers Vacat ion Trust , 463 U.S. 1, 14 (1983)). The Court made clear that “ Moitie did not create a preclusion exception to [this] rule.” Id. at 926.

On r emand, the NAACP contends that a defense of claim preclusion served as the basis for removal in this case, so Rivet requires us to remand t

he case to state court. We disagree. In NA ACP we affirmed the district court’s decision to take jurisdiction-5-

over stat e-law claims based on the All Writs Act, not on claim preclusion, and w e expressly declined to decid e whether the claims were removable under Moitie ’s artful pleading doctrine. See NAACP , 125 F.3d at 1173-74. To review, NAACP started out

as a state-law-based class action brought against numerous defendants in Minnesot a state court. The NAACP and a class consisting of all Minneapolis public schoo l students (collectively the students) claimed violations of the Education and Equa l Protection Clauses of the Minnesota Const itution. The students’ claims against one of the de fendants, the Metropolitan Council (Met Council), all had to do with housing

related policies and practices. Just six months earlier, however, the Met Council had bound i tself to make specific changes in those policies and practices under a federa l consent decree (the Hollmandecree). The Hollmandecree concluded an earlier Fair Housing Act lawsuit brought by the NAAC P and a class some of whose members also belon ged to the student class. Under the terms of the Hollmandecree, the partie s agree d not to relitigate “any matters alleged in this action,” and the District Court for th e District of Minnesota retained jurisdiction to supervise compliance until the year 2002. See id. at 1172-73.

When the NAACP suit was filed in state court, the Met Council removed th e
c a se to the District Court for the District of Minnesota. On the students’ motion, the district court remanded to state court the claims against all the defendants except the Met Council. The district court base d its jurisdiction over the students’ claims against the Met Council on tw o grounds: the All Writs Act, 28 U.S.C. § 1651(a) (1994), and Moitie ’s footnote two. See NAACP , 125 F.3d at 1172. Although we did not mention it in our earlier opinion, the district co urt followed the Second Circuit’s forum-election approach to Moitie , not the claim-preclusion approach the Supreme Court rejected in Rivet

. The Met Council then filed a motion to dismiss the students’ claims a s precluded by Hollman , which the district court granted. See id. On appeal, we held the district court properly exercised jurisdiction under the All Writs Act. See id. a t 1173-74

. “Because we conclude removal was proper under the All Writs Act,” w e added, “we need not determine whether removal was also warranted under the artful-6-

pleading doctr

ine.” Id. at 1174. We also affirmed the district court’s separate claimpreclusion ruling. See id. at 1174-75. Considering the district court did not bas e removal on Hollman ’s preclusive effect, we conclud e our opinion in NAACP affirming that ruling is not contrary to the Court’s holding in Rivet

.

In summary, agreeing with the Second, Sixth, and Seventh Circuits, see id. a t 117 3-74, we upheld the district court’s exercise of removal jurisdiction under the All Writs Act “‘to effectuate and prev ent the frustration of orders [the district court] ha[d] previously issued in its exercise of jurisdiction otherwise obtained,’” id. at 117 3 (quoti ng United States v. New York Tel. Co. , 434 U.S. 159, 172 (1977)). The Third Circuit also shares our view, see Davis v. Glanton , 107 F.3d 1044, 1047 n.4 (3d Cir.), cert. denied , 118 S. Ct. 159 (1997), as does the concurrence in the one appellat e decision that disagrees with us, see Hillman v. Webley , 115 F .3d 1461, 1470 (10th Cir. 1997) (Kelly, Jr., J., concurring in result). Simply put, we concluded t he district court’s power t o do what it did in NAACP flowed from its ongoing supervisory jurisdictio n under the Hollman

consent decree. Repeating this conclusion, we emphasize “the All Writs Act i s not a jurisdictional blank check [that] district courts may use wheneve r they deem it advisable.” Ivy v. Diamond Shamrock Chems. Co. (In re Agent Orange Prod. Liab. Litig.) , 996 F.2d 1425, 1431 (2d Cir. 1993); see also Pennsylvania Bureau of Correction v. United States Marshals Serv. , 474 U.S. 34, 43 (1985) (“Although [the All Writs] Act empowers federal courts to fashion extraordinary remedies when th e need arises, it does not authorize them to issue ad h oc writs whenever compliance with statutory procedures appears inconvenient or less appropriate.” ). Finally, we recognize the Supreme Court in Rivet noted that a federal court may protect its judgments b y enjoining state-court proceedings under the relitigation e xception to the Anti-Injunction Act. See Rivet , 118 S. Ct. at 926 n.3. We mentioned the relitigation exception in our opinion, see NAACP , 125 F.3d at 1174, but that exception was not involved in ou r decision because none of the parties made it an issue in the case. The NAACP asked this court to decide whether the d istrict court could use the All Writs Act to protect its-7-

consent decree, and we concluded i t could. Footnote three in Rivet points out another procedural option , but we do not read footnote three to rule out the one we approved.

Because this court’s holding in NAACP is not at odds with Rivet , we reinstate our opinion reported at 125 F.3d 1171 and again affirm the district court.
A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.