Quitman Sch Dist v. Enterprise School, et a

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-60592
Summary Calendar
QUITMAN CONSOLIDATED SCHOOL DISTRICT;
Plaintiff - Counter Defendant - Appellee,
STEVE CONNER, a member of the board of education; LARRY
HOWZE, a member of the board of education; LEWIS JEFFERSON,
a member of the board of education; MICKEY LONG, a member of
the board of education; WALTER TAYLOR, a member of the board
of education
Plaintiffs - Appellees
v.
ENTERPRISE SCHOOL DISTRICT, by and through its
superintendent, Kenneth W Pouncey; ANDREW KERSH, a member of
the board of education; LINDA SISSON, a member of the board of
education; MICHAEL GUNN, a member of the board of education; JOHN
MCPHEARSON, a member of the board of education; BILLY
MOSLEY, a member of the board of education
Defendants - Counter Claimants - Appellants
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 4:99-CV-60-LN
--------------------
July 11, 2000
Before KING, Chief Judge, and JONES and DeMOSS, Circuit Judges.
PER CURIAM:*
Plaintiff-Counter Defendant-Appellee Quitman Consolidated
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
School District and Plaintiffs-Appellees Steve Conner, Larry
Howze, Lewis Jefferson, Mickey Long, and Wayne Taylor (all
members of the Quitman Consolidated School District Board of
Education)(collectively, “Quitman”) originally brought this
declaratory judgment action against Defendants-Counter Claimants-
Appellants Enterprise School District, its superintendent, and
members of its board of education (collectively, “Enterprise”) in
Mississippi state court. The suit sought a judgment declaring
that: (1) complete ownership of the Clarke County Vocational
Technology Center (the “Center”) is vested in the Quitman
Consolidated School District; (2) Quitman has a right to assess
tuition and registration fees to non-district students; (3)
Enterprise owes Quitman back tuition payments for Enterprise
students who attended the Center; and (4) Enterprise must furnish
Quitman with a full accounting of all funds generated by
Sixteenth Section lands within the shared townships of Clarke
County, Mississippi.
Enterprise removed the action to the United States District
Court for the Southern District of Mississippi. Enterprise based
removal on two separate grounds. First, it contended that
removal was proper under 28 U.S.C. § 1441(b) because the federal
courts had continuing jurisdiction over this matter as the issues
raised by Quitman affected desegregation orders previously
entered by this court. Second, it alleged that removal was also
proper under 28 U.S.C. § 1443 because the suit was being brought
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against Enterprise in its role as an “enforcer” of the earlier
desegregation decrees. Enterprise subsequently filed a
counterclaim seeking: (1) a preliminary injunction ordering that
Enterprise students be allowed to continue their studies at the
Center; and (2) an order declaring that the Center be operated as
a regional vocational education center pursuant to Mississippi
Code Annotated §§ 37-31-71 to 37-31-79 (1996).
Quitman subsequently moved the district court to remand the
case to state court. The district court found that the suit was
neither connected to the previous desegregation orders, nor to
Enterprise’s role as an “enforcer” of the earlier desegregation
decrees. The district court therefore remanded the case to state
court. Enterprise timely appeals.
As an initial matter, it should be noted that this court has
jurisdiction to hear Enterprise’s appeal. While an order
remanding a case to state court is generally not reviewable, if
the case was originally removed pursuant to 28 U.S.C. § 1443 this
court may review a subsequent remand order. See 28 U.S.C.
§ 1441(d).
On appeal, Enterprise argues that the case was properly
removed under 28 U.S.C. § 1443(2) because resolution of the
instant suit could potentially conflict with prior desegregation
orders issued by this court. See Lauderdale County Sch. Dist. v.
Enterprise Consol. Sch. Dist., 24 F.3d 671, 688-98 (5th Cir.
1994); United States v. Hinds County Sch. Board, 423 F.2d 1264
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(5th Cir. 1969); United States v. Hinds County Sch. Board, 417
F.2d 852 (5th Cir. 1969). Section 1443(2) allows a defendant to
remove a case to federal court if he is sued in state court for
“refusing to do any act on the ground that it would be
inconsistent with any law providing for equal rights.” News-
Texan, Inc. v. City of Garland, Texas, 814 F.2d 216, 218 (5th
Cir. 1987) (internal quotations and citations omitted).
Enterprise essentially contends that Quitman’s requested relief
would force Enterprise to take actions that would violate the
earlier desegregation decrees issued by this court, and therefore
removal of this action under § 1443(2) is proper.
A review of Quitman’s declaratory judgment action and
Enterprise’s answer and counterclaim, however, reveals that the
instant action does not involve desegregation issues, issues
addressed in the prior desegregation cases, or any other civil
rights issue. Moreover, Enterprise has not shown a colorable
conflict between resolution of this case and the prior
desegregation decrees. See Alonzo v. City of Corpus Christi, 68
F.3d 944, 946 (5th Cir. 1995); see also News-Texan, Inc., 814
F.2d at 218-21. As such, Enterprise has failed to show that
removal was proper under § 1443(2) or that federal jurisdiction
otherwise exists. Therefore, the district court’s remand of this
case is AFFIRMED.
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