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Steve Gee, Jr. v. State of Texas ( 2019 )


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  •      Case: 18-11186      Document: 00514935600         Page: 1    Date Filed: 04/30/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-11186                                FILED
Summary Calendar                          April 30, 2019
Lyle W. Cayce
Clerk
STEVE SAMUEL GEE, JR.,
Plaintiff - Appellant
v.
STATE OF TEXAS; STACEY D. GEE; ADORA L. LOCKABY,
Defendants - Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:18-CV-833
Before HIGGINBOTHAM, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM:*
Steve S. Gee, Jr. removed a Texas divorce proceeding to federal court.
The district court remanded the proceeding to state court, and Gee appeals.
We affirm the district court’s remand order in part and dismiss the appeal for
lack of jurisdiction in part.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 18-11186       Document: 00514935600          Page: 2     Date Filed: 04/30/2019
No. 18-11186
While we ordinarily cannot review an order to remand a case to state
court, we may do so when removal was brought pursuant to sections 1442 or
1443 of the United States Code. 1 Where a party has argued for removal on
multiple grounds, we only have jurisdiction to review a district court’s remand
decision for compliance with those provisions. 2 Gee asserted that he could
remove the divorce proceeding under section 1443, so we will review the
district court’s remand order to the extent it rejected this argument. We
examine the district court’s decision de novo. 3
We agree with the magistrate judge’s report and recommendation,
accepted and adopted by the district court, that Gee could not remove this case
under section 1443. The report and recommendation explains that under the
Supreme Court’s and our own settled caselaw, “[t]o gain removal to federal
court under
    28 U.S.C. § 1443
    , the defendant must show both that (1) the right
allegedly denied it arises under a federal law providing for specific rights
stated in terms of racial equality; and (2) the removal petitioner is denied or
cannot enforce the specified federal rights in the state courts due to some
formal expression of state law.” 4 Gee concedes that “his claims in this case do
not arise under a federal law pertaining specifically to racial equality, yet he
asks that we disregard the Supreme Court’s construction of § 1443(1) as error.
This we cannot do.” 5
The district court’s judgment is affirmed to the extent that it addressed
section 1443, and the appeal is otherwise dismissed for lack of jurisdiction.
1 See
    28 U.S.C. § 1447
    (d).
2 See City of Walker v. Louisiana,
    877 F.3d 563
    , 566 n.2 (5th Cir. 2017) (discussing
Robertson v. Ball,
    534 F.2d 63
    , 65–66 (5th Cir. 1976)).
3 Cf. Legendre v. Huntington Ingalls, Inc.,
    885 F.3d 398
    , 400 (5th Cir. 2018) (reviewing
a remand order addressing
    28 U.S.C. § 1442
     de novo).
4 Texas v. Gulf Water Benefaction Co.,
    679 F.2d 85
    , 86 (5th Cir. 1982); see Johnson v.
Mississippi,
    421 U.S. 213
    , 219 (1975).
5 McMullen v. Cain, 726 F. App’x 257 (per curiam).
2