                                   RECOMMENDED FOR FULL-TEXT PUBLICATION
                                        Pursuant to Sixth Circuit Rule 206
                                                 File Name: 06a0009p.06

                           UNITED STATES COURT OF APPEALS
                                            FOR THE SIXTH CIRCUIT
                                              _________________


                                                                 X
                                            Plaintiff-Appellee, -
 STATE OF OHIO,
                                                                  -
                                                                  -
                                                                  -
                                                                       No. 05-3880
             v.
                                                                  ,
                                                                   >
 JOHN DOE,                                                        -
                                         Defendant-Appellant. -
                                                                 N
                                  Appeal from the United States District Court
                                  for the Southern District of Ohio at Dayton.
                                 No. 04-00155—Walter H. Rice, District Judge.
                                            Argued: November 1, 2005
                                      Decided and Filed: January 10, 2006
                  Before: DAUGHTREY and COLE, Circuit Judges; BARZILAY, Judge.*
                                                _________________
                                                      COUNSEL
ARGUED: S. Adele Shank, LAW OFFICE OF S. ADELE SHANK, Columbus, Ohio, for Appellant.
Carley J. Ingram, OFFICE OF THE PROSECUTOR, Dayton, Ohio, for Appellee. ON BRIEF: S. Adele
Shank, LAW OFFICE OF S. ADELE SHANK, Columbus, Ohio, Lawrence J. Greger, Dayton, Ohio, for
Appellant. Carley J. Ingram, John A. Cumming, OFFICE OF THE PROSECUTOR, Dayton, Ohio, for
Appellee.
                                                _________________
                                                    OPINION
                                                _________________
       R. GUY COLE, JR., Circuit Judge. Defendant-Appellant John Doe, a/k/a Beth Goldstein Lewis,
a/k/a Beth Lewis Trimmer (hereinafter “Lewis”), appeals the decision of the district court ordering her to
respond to any Ohio grand jury subpoena served on her that seeks to compel disclosure of information
regarding the 1999 disappearance of nine-year-old Erica Baker. For the reasons set forth below, we
conclude that the district court did not have removal jurisdiction over this matter, and we VACATE the
decision of the district court and REMAND this case to state court.




   *
    The Honorable Judith M. Barzilay, Judge of the United States Court of International Trade, sitting by designation.


                                                             1
No. 05-3880                 State of Ohio v. John Doe                                                                  Page 2


                                                               I.
       Lewis is a former federal public defender who represented Jan M. Franks in a federal criminal
prosecution on drug charges in district court in Dayton, Ohio. Franks died in December 2001, and the State
of Ohio believes that she may have conveyed information to Lewis concerning the 1999 disappearance of
Erica Baker.
        The matter now before us arose from an effort to compel Lewis to answer certain grand jury
interrogatories concerning her communications with Franks. Ohio statutory law establishes that attorney-
client privilege generally survives a client’s death, but the statute permits a surviving spouse to waive a
deceased spouse’s privilege. Ohio Rev. Code § 2317.02. Lewis resists responding to the interrogatories,
arguing that the communications with her former client continue to be protected under federal attorney-
client privilege law. The United States Supreme Court has held that the federal common law attorney-client
privilege survives a client’s death and has not recognized any exception that would allow waiver in the
criminal context. Swidler & Berlin v. United States, 524 U.S. 399 (1998).
        In June 2002, a Montgomery County Grand Jury subpoenaed Lewis, who appeared before it but
refused to respond to certain interrogatories on the ground that to do so would violate her deceased client’s
attorney-client privilege. A hearing was conducted on June 25, 2002, in the Montgomery County Court of
Common Pleas, and the court found that Franks’s surviving spouse, Shane Nolan Franks, had validly waived
Franks’s attorney-client privilege, pursuant to Ohio law, and determined that Lewis was required to answer
the interrogatories that had been propounded by the grand jury. Upon Lewis’s continued refusal to respond
to the interrogatories, the court found Lewis in contempt of court. The court gave Lewis the opportunity
to purge herself of contempt by answering the grand jury’s questions before noon the following day, and
further ordered that if not thereby purged, Lewis was to be incarcerated until she purged herself of the
contempt or was otherwise released as provided by law. State v. Doe, No. 2002 CR 01975 (C.P. Ct.
Montgomery County, Ohio June 26, 2002).
        Lewis appealed the contempt order in state court, arguing state law defenses of statutory
interpretation, public policy, and common law. The Court of Appeals of Montgomery County, Ohio
affirmed the judgment of the trial court. No. 19408, 2002 WL 31105389 (Ct. App. Ohio Sept. 19, 2002).
Lewis appealed to the Supreme Court of Ohio, which affirmed the Court of Appeals decision in an opinion
issued March 3, 2004. 803 N.E.2d 777 (Ohio 2004). The Supreme Court of Ohio also issued a mandate
commanding the Montgomery County Court of Common Pleas to carry its judgment into execution.
         Lewis filed a motion for reconsideration with the Supreme Court of Ohio, raising federal defenses
for the first time, which was denied without opinion on May 13, 2004.1 808 N.E.2d 400 (Ohio 2004). The
Supreme Court of the United States denied Lewis’s petition for certiorari in October 2004. 125 S. Ct. 353
(2004).
        During the course of Lewis’s appeals of her contempt order, the term of the grand jury that had
issued Lewis’s June 2002 subpoena expired. See Ohio R. Crim. P. 6(G) (establishing term of grand jury
as four months and permitting extension to nine months). Under Ohio law, a grand jury subpoena and any
related civil contempt order expire when the term of the grand jury ends, and a recalcitrant witness held in
custody must be released. State v. Kilbane, 400 N.E.2d 386, 390 (Ohio 1980); State v. Granchay, 204
N.E.2d 562, 565 (Ct. App. Ohio 1964). Ohio case law does not appear to address the question of whether,
upon the impaneling of a new grand jury, a separate contempt order must formally issue. None of the
opinions over the course of Lewis’s state court appeals process addresses whether Lewis’s 2002 subpoena
and contempt order were enforceable to compel her testimony before a successor grand jury upon the
expiration of the first grand jury term.

    1
      Under Ohio law, the Supreme Court of Ohio will not address a question, including a federal constitutional question, unless
the question was presented in the court below. State v. Williams, 364 N.E.2d 1364, 1367 (Ohio 1977).
No. 05-3880             State of Ohio v. John Doe                                                        Page 3


        On March 5, 2004 (after the Supreme Court of Ohio denied Lewis’s appeal but before Lewis moved
for reconsideration), a new grand jury issued a second subpoena compelling Lewis’s testimony. On May 13,
2004, the Montgomery County Court of Common Pleas scheduled a hearing for May 17, 2004, to determine
if Lewis would comply with the second subpoena. On May 14, 2004, Lewis removed the case to federal
court under 28 U.S.C. §§ 1441 and 1442(a)(3).
         The district court denied the State’s motion to remand. First, the court concluded that removal of
this action to federal court was not barred by the entry of a final judgment in state court, because the state
court proceedings pertained to the June 2002 grand jury subpoena, whereas the proceedings removed to
federal court were a separate action to enforce the March 2004 grand jury subpoena. Second, the court
found that the removal of the 2004 subpoena enforcement proceedings was not time-barred under 28 U.S.C.
§ 1446 because, although the subpoena was issued on March 5 and Lewis did not remove until May 14, the
30-day window for removal did not begin to run until the Supreme Court of Ohio rejected her request for
reconsideration in the first set of proceedings on May 13. Third, the district court concluded that
jurisdiction was not barred by the Rooker-Feldman doctrine, because the removed proceedings were not a
collateral attack on the 2002 contempt order but rather a direct appeal of the effort to enforce the 2004
subpoena.
        On April 22, 2004, the district court entered partial judgment for the State, rejecting Lewis’s federal
defenses. Thereafter, the district court permitted Lewis to withdraw her remaining state law defense, final
judgment was entered on June 17, 2005, and Lewis filed a Notice of Appeal on June 30, 2005. On July 29,
2005, this Court granted Lewis’s motion to stay the district court’s judgment and to enjoin the State from
taking further action pending the outcome of her appeal in this Court.
                                                       II.
         Upon Lewis’s removal of the 2004 subpoena enforcement efforts to federal district court, the State
filed a timely motion to remand, arguing, inter alia, lack of jurisdiction because a final judgment had been
entered in state court. The district court denied the State’s motion to remand but entered judgment in favor
of the State on the merits, and the State does not raise any objections to removal on appeal. Nevertheless,
we must sua sponte police our own jurisdiction, regardless of whether the parties challenged jurisdiction,
and we lack appellate jurisdiction where the district court lacked subject matter jurisdiction. United States
v. Certain Land Situated in City of Detroit, 361 F.3d 305, 307 (6th Cir. 2004).
         We conclude that the district court did not have proper subject matter jurisdiction to hear this matter.
Under 28 U.S.C. § 1442, a federal officer may remove a “civil action or criminal prosecution commenced
in a State court” against her for any act under color of office. Under the general removal statute at 28 U.S.C.
§ 1441, “civil action” has long been interpreted to require a separate suit that is not ancillary, incidental, or
auxiliary to a suit in state court. Barrow v. Hunton, 99 U.S. 80, 82 (1879); Bank v. Turnbull & Co., 83 U.S.
(16 Wall.) 190, 193 (1873); see also 29A Fed. Proc., L. Ed. § 69:6; 18 A.L.R. Fed. 126. We consider this
requirement applicable in the § 1442 context. Although courts have recognized that the meaning of
“officer” and “color of office” in § 1442 should be broadly construed to advance the congressional intent
of ensuring that federal officers receive the protection of a federal forum, see Willingham v. Morgan, 395
U.S. 402, 407 (1969); Kentucky v. Long, 837 F.2d 727, 750 (6th Cir. 1988), no court has held that the long-
standing rule regarding the meaning of “civil action” under § 1441 has no application in interpreting “civil
action” under § 1442. At least one district court has applied the rule against removal of ancillary and
incidental proceedings to bar removal in the § 1442 context. See W. Med. Props. Corp. v. Denver
Opportunity, Inc., 482 F. Supp. 1205, 1207 (D. Colo. 1980). Lewis’s 2004 subpoena enforcement action
is clearly ancillary, incidental, or auxiliary to her 2002 contempt proceedings, which she chose to litigate
fully in state court, and the objective of ensuring that federal officers need only answer in a federal forum
is not advanced by permitting Lewis’s belated removal now.
No. 05-3880             State of Ohio v. John Doe                                                       Page 4


        We find that the district court erred in concluding that the expiration of Lewis’s first grand jury term
and the issuance of a new subpoena resulted in a second “action” removable under § 1442. The hearing to
enforce the second subpoena against Lewis could be characterized as a separate proceeding only in the most
technical, and trivial, sense: The second subpoena sought the same testimony as the first, and Lewis resisted
complying with the subpoena because of the same underlying circumstances. At the time of Lewis’s
removal, the Supreme Court of Ohio’s decision affirming the contempt order had become final and its
mandate had issued ordering the lower court to “carry the . . . judgment . . . into execution.” Under Ohio’s
“law of the case” doctrine, an inferior court has no discretion to deviate from the mandate of a superior court
in a prior appeal in the same case. State ex rel. Crandall, Pheils & Wisniewski v. DeCessna, 652 N.E.2d
742, 744 (Ohio 1995). This doctrine applies when a trial court upon rehearing is “confronted with
substantially the same facts and issues as were involved in the prior appeal.” Nolan v. Nolan, 462 N.E.2d
410, 413 (Ohio 1984). Furthermore, Ohio’s doctrine of res judicata bars a defendant from raising in a
subsequent proceeding a defense that could have been, but was not, raised in a prior proceeding. See City
of Canton v. Maynard, 766 F.2d 236, 238 (6th Cir. 1985) (recognizing that Ohio doctrine of res judicata
applies to defenses that could have been raised in prior action); Johnson’s Island, Inc. v. Bd. of Twp.
Trustees, 431 N.E.2d 672, 675-76 (Ohio 1982) (same); O’Nesti v. DeBartolo Realty Corp., __ N.E.2d __,
2005 WL 2338633, at *4 (Ohio App. 2005) (demonstrating res judicata applies to defendants as well as
plaintiffs); Packer, Thomas & Co. v. Eyster, 709 N.E.2d 922, 928 (Ohio App. 1998) (same). Thus, if
Lewis’s defense against the second subpoena had proceeded in state court, her federal defenses would have
been barred by Ohio law, and nothing would have remained of the action but for the state court to enforce
the judgment of the Supreme Court of Ohio. We agree with the reasoning of our sister circuits in ruling that
when all that remains of an action is the enforcement of a judgment, removal to federal court is not
authorized. See In re Meyerland Co., 910 F.2d 1257, 1266 (5th Cir. 1990); Four Keys Leasing & Maint.
Corp. v. Simithis, 849 F.2d 770, 774 (2d Cir. 1988); cf. Blue Ox Corp. v. Murphy Oil Corp., 524 F. Supp.
1019 (D. Mont. 1981) (holding that litigant waives removal right where two actions arise from same
occurrence and first was fully litigated in state court).
        Our conclusion is in keeping with federal case law’s existing treatment of problems attendant to the
expiration and reissuance of grand jury subpoenas. The federal courts have recognized the close
relationship between one grand jury term and the next, and generally have not treated the expiration of a
grand jury term as a formal termination of legal proceedings. Addressing some of the administrative
complexities that may arise from the expiration of one grand jury and the impaneling of a successor grand
jury, the Ninth Circuit held that an order of immunity issued during one grand jury term need not be
renewed before a witness’s testimony could be compelled before a new grand jury, and that the court need
not issue a new order compelling the witness’s testimony before the new grand jury. See In re Weir, 520
F.2d 662, 665-66 (9th Cir. 1975). Likewise, the Fifth Circuit has concluded that a subpoena issued by one
grand jury may be served prior to impaneling the second grand jury, see United States v. Stevens, 510 F.2d
1101, 1106 (5th Cir. 1975), and the Tenth Circuit has concluded that a subpoena issued by one grand jury
may be used to obtain evidence for a second grand jury, see In re Grand Jury Proceedings, 658 F.2d 782,
783 (10th Cir. 1981). Similarly, the Supreme Court has recognized that while a civil contempt order cannot
impose a sentence that extends “beyond the cessation of the grand jury’s inquiry . . . ,” “[b]y the same token,
the sentence of imprisonment may be continued or reimposed if the witnesses adhere to their refusal to
testify before a successor grand jury.” Shillitani v. United States, 384 U.S. 364, 371 & n.8 (1966).
         Our conclusion is further compelled by the fact that Lewis’s belated efforts to remove the subpoena
enforcement actions offend the “spirit of the removal acts, which do not contemplate that a party may
experiment on [her] case in state court, and, upon an adverse decision, then transfer it to Federal court.”
Rosenthal v. Coates, 148 U.S. 142, 147 (1893). By litigating the merits of her defense against the contempt
order to the highest state court, receiving an adverse judgment, moving for reconsideration, and petitioning
the Supreme Court of the United States for certiorari, Lewis had clearly chosen a state forum. In Lewis’s
first round of appeal, she challenged the court’s interpretation regarding what Ohio privilege law required
her to do. Now, with the advantage of knowing the outcome of the state law questions regarding Ohio’s
statutory scheme, Lewis seeks to raise new defenses as to why the law, thus interpreted, should not apply
No. 05-3880             State of Ohio v. John Doe                                                      Page 5


to her. Such piecemeal litigation offends the spirit of the removal statutes and undermines judicial
economy. Treating Lewis’s nearly-identical second subpoena enforcement as a separate action for purposes
of removal would create a bizarre and unjust result: an opportunity to relitigate in a new forum an already
failed effort to resist compliance that would be procedurally barred in state court.
        We reach this conclusion despite the fact that the federal defenses Lewis now raises were not
brought before the state court. While the defendant’s reliance on a new defense theory upon removal may
resolve Rooker-Feldman concerns, it cannot reopen a judgment and therefore does not create subject matter
jurisdiction. To permit Lewis to remove now simply because she raises new defenses would amount to
Lewis receiving a windfall from her failure to exhaust her federal claims in state court. Practically speaking,
Lewis seeks a collateral review to set aside the prior judgment that would be procedurally barred under
proper collateral appeal procedures.
        We are not persuaded by the argument, made by Lewis in district court, that her federal defenses
were not “ripe” for review until the state court determined that the state statute applied to compel her
testimony. The issue in Lewis’s contempt proceedings has always been her refusal to testify in state court
based upon her assertion of attorney-client privilege, and nothing prevented Lewis from raising her current
federal defenses regarding that issue in state court. Instead, Lewis chose to wait to bring her federal
defenses until she saw how her state law defenses fared. Lewis’s argument to the district court that she
could not have anticipated the state court’s interpretation of the Ohio statute is essentially an argument that
she did not expect to lose on her state law defenses. Her expectation that she would not need to rely on her
federal defenses is no excuse for her failing to raise them.
        Having had her day in court, Lewis seeks to profit from outrunning her first state court contempt
order by raising federal arguments that she failed to raise when she had the chance. Lewis “has
experimented with the state courts and been beaten, and now seeks a different forum.” Rosenthal, 148 U.S.
at 147. Section 1442(a) of the removal statutes does not confer federal jurisdiction for such purposes.
                                                     III.
       The judgment of the district court is vacated, and the case remanded to state court for further
proceedings.
