Wednesday, July 19, 2006

E.D. Ark. Declines to Apply Civil Rights Exception to Well-Pleaded Complaint Rule in Disbarment Case

Per McCullough v. Ligon, 430 F. Supp. 2d 846 (E.D.Ark. May 11, 2006)

A narrow exception to the well-pleaded complaint rule allows removal of certain civil rights actions pursuant to 28 U.S.C. § 1443. To be removable, the defendant must rely "upon a law providing for equal civil rights stated in terms of racial equality." Neal v. Wilson, 112 F.3d 351, 355 (8th Cir.1997) (citing 28 U.S.C. § 1443(1) and Georgia v. Rachel, 384 U.S. 780, 782 (1966)). Further, the defendant must show by reference to a law of general application or similarly "firm prediction" that he is denied or cannot enforce such civil rights in state court. Georgia, 384 U.S. at 800, 804.

It is undisputed that the state disciplinary actions against plaintiffs do not arise under the Constitution, laws, or treaties of the United States. Plaintiffs argue, however, that the civil rights exception to the well-pleaded complaint rule applies in this case. As to the first requirement, plaintiffs contend that they rely upon civil rights laws stated in terms of racial equality because their pleaded claims under 42 U.S.C. §§ 1981, 1983, 1985, and the Fourteenth Amendment involve alleged racial discrimination. Although plaintiffs ignore the requirement that the laws themselves be stated in terms of racial equality, their claim under § 1981 may nonetheless qualify for removal. See City of Greenwood v. Peacock, 384 U.S. 808, 825 (1966); Neal, 112 F.3d at 355. However, plaintiffs have not met the second requirement under the civil rights exception because they fail to point to any state law or other equally firm prediction that indicates they will be prevented from enforcing their § 1981 rights in state court. See Neal, 112 F.3d at 355.

Citing the Supreme Court's decision in Georgia v. Rachel, plaintiffs argue that this court should hold a hearing to determine whether their racial discrimination claims warrant removal under 28 U.S.C. § 1443(1). However, the Rachel Court did not hold that any allegations of racial discrimination require a hearing to determine whether the underlying state court action may be removed. Id. at 800-05. Rather, the Court allowed removal of criminal proceedings in Rachel based on specific rights under the Civil Rights Act of 1964 that precluded prosecution of the alleged racially motivated crimes. See Rachel, 384 U.S. at 804-05; see also City of Greenwood, 384 U.S. at 831 (discussing scope of Rachel decision). Contrary to plaintiffs' argument, the mere allegation of racial discrimination does not allow a federal district court to consider otherwise unremovable actions. See City of Greenwood, 384 U.S. at 832. Therefore, plaintiffs' argument is without merit. For all of the above reasons, the state disbarment actions are not removable under 28 U.S.C. § 1443(1). Defendants' motion to remand is granted.


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