Annie J. Ashment v. Joseph B. McCarthy , 697 F. App'x 679 ( 2017 )

Case: 17-10314 Date Filed: 09/27/2017 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-10314
Non-Argument Calendar
________________________
D.C. Docket No. 1:16-cv-04585-TWT
ANNIE J. ASHMENT,
Plaintiff-
Counter Defendant-
Appellee,
versus
JOSEPH B. MCCARTHY,
Defendant-
Third Party Plaintiff-
Counter Claimant-
Appellant,
JOHN DOEPKER,
Third Party Defendant,
BRAD MACDONALD,
Third Party Defendant-Appellee.
Case: 17-10314 Date Filed: 09/27/2017 Page: 2 of 5
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 27, 2017)
Before ED CARNES, Chief Judge, JULIE CARNES, and JILL PRYOR, Circuit
Judges.
PER CURIAM:
Joseph McCarthy, proceeding pro se, appeals from the district court’s order
remanding his case to state court for lack of subject matter jurisdiction. McCarthy
contends that the case was properly removed under 28 U.S.C. §1443, which allows
for removal under narrow circumstances where necessary for the protection of civil
rights. “Pro se pleadings are held to a less stringent standard than pleadings
drafted by attorneys and will, therefore, be liberally construed.” Tannenbaum v.
United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
This case is the product of a divorce. Annie Ashment, McCarthy’s ex-wife,
filed a contempt action against him in the Superior Court of Cobb County,
Georgia. She alleged that McCarthy was in willful contempt for failing to pay
child support and legal fees associated with the couple’s earlier divorce decree.
In his notice of removal, McCarthy contended the case was removable under
28 U.S.C. §§ 1331, 1441, 1443, and 1446, because it raised issues of federal law
and constitutional rights. He argued that the state court contempt proceeding
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violated his liberty interests and parental rights, and that the attempt to collect
debts from him violated the Fair Debt Collection Practices Act. McCarthy alleged
that the judge presiding over the contempt case in state court had been biased
against him during the divorce proceedings and in earlier contempt actions. He
claimed that the judge would likewise be biased in this current contempt case. As
a result, he asserted that removal was proper under 28 U.S.C. §1443 because he
would not be able to enforce his civil rights in state court.
The district court concluded that it did not have subject matter jurisdiction,
and it remanded the case to state court. It held that there was no federal question
jurisdiction. It also held that there was no diversity jurisdiction and, if there
otherwise would have been, the domestic relations exception applied. But the
court’s order was silent as to removal under 28 U.S.C. §1443.
A district court’s remand order is ordinarily not reviewable on appeal. 28
U.S.C. §1447(d). But 28 U.S.C. § 1447(d) makes an exception for § 1443,
allowing appellate review where a remand order is challenged under that provision.
As a result, our review here is limited to the district court’s implicit
determination that there was no jurisdiction under 28 U.S.C. §1443, which we
consider de novo. Castleberry v. Goldome Credit Corp., 408 F.3d 773, 780–81
(11th Cir. 2005). Any other review of the remand order is barred. See Whole
Health Chiropractic & Wellness, Inc. v. Humana Med. Plan, Inc., 254 F.3d 1317,
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1319 (11th Cir. 2001) (noting § 1447(d) shields most remand orders based on lack
of subject matter jurisdiction from appellate review).
Under § 1443 a defendant may remove a civil action initiated in state court
to a federal district court if the action is “[a]gainst any person who is denied or
cannot enforce in the courts of such State a right under any law providing for the
equal civil rights of citizens of the United States or of all persons within the
jurisdiction thereof.” 28 U.S.C. §1443(1). A removal notice filed under § 1443(1)
must satisfy the two prong test developed in Georgia v. Rachel, 384 U.S. 780, 792,
794, 86 S. Ct. 1783, 1790–91 (1966). First, the party seeking removal must show
that the right relied upon “arises under a federal law providing for specific civil
rights stated in terms of racial equality.” Alabama v. Conley, 245 F.3d 1292, 1295
(11th Cir. 2001) (quoting Rachel, 384 U.S. at 792, 86 S. Ct. at 1790). Second, he
“must show that he has been denied or cannot enforce that right in the state
courts.” Id.McCarthy cannot show that the first prong of the Rachel test is met because
he does not assert that Georgia state courts denied him a right under federal law
“stated in terms of racial equality.” Id. at 1295. He alleges in his removal notice
that his constitutionally protected parental rights, liberty interests, and rights to a
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fair and impartial judiciary have been violated.1 But this Court has explicitly held
that the protections conferred by § 1443 do not extend to general due process,
equal protection, and judicial bias claims or other rights that are “of general
application available to all persons or citizens.” Id. at 1295–99. 2 To the extent
McCarthy relies on these “rights of general application,” his claim for removal
under § 1443 fails.3 Id.
Because McCarthy cannot satisfy the first prong of Rachel, there is no basis
for removal under § 1443.
AFFIRMED.
1
The district court looks at the case at the time of removal to determine whether it has
subject matter jurisdiction. Pintando v. Miami-Dade Hous. Agency, 501 F.3d 1241, 1244 n.2
(11th Cir. 2007). Because McCarthy’s answer, defenses, counterclaim, and third party complaint
were not filed at the time of removal, the district court correctly did not consider them in its
analysis. Id. In any event, it is Ashment’s complaint that matters for removability purposes.
See Coker v. Amoco Oil Co., 709 F.2d 1433, 1440 (11th Cir. 1983) (“Removability should be
determined according to the plaintiff’s pleading . . . .”) (internal quotation marks omitted). As
a result, McCarthy’s claims have no bearing on the decision to remand. See id.2
McCarthy’s other argument — that grounds for removal exists under § 1443
because the attempt to collect money from him through the contempt proceeding is a violation of
the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et seq. — has been abandoned, as it
was not raised in his appeal. AT&T Broadband v. Tech Commc’ns., Inc., 381 F.3d 1309, 1320
n.14 (11th Cir. 2004) (“Issues not raised on appeal are considered abandoned.”).
3
McCarthy invites us to overrule the “racial equality” requirement of Rachel. But the
prerogative to overrule Supreme Court precedent belongs to the Supreme Court alone. State Oil
Co. v. Kahn, 522 U.S. 3, 20, 118 S. Ct. 275, 284 (1997); see also Evans v. Sec’y Fla. Dep’t of
Corr., 699 F.3d 1249, 1263 (11th Cir. 2012) (“The [Supreme] Court has told us, over and over
again, to follow any of its decisions that directly applies in a case, even if the reasoning of that
decision appears to have been rejected in later decisions and leave to that Court the prerogative
of overruling its own decisions.”).
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