           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        November 19, 2008

                                     No. 08-40494                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


DARIO DIAZ

                                                  Plaintiff-Appellee
v.

CAMERON COUNTY TEXAS; ROBERT LOPEZ, Constable Precinct 4

                                                  Defendants-Appellants



                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 No. 1:07-CV-185


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
       Defendants Cameron County and Constable Robert Lopez (the “County
Defendants”) appeal from an award of attorney's fees against them pursuant to
28 U.S.C. 1447(c). For the following reasons, we vacate the district court’s award
of attorney’s fees.
       This case began when Constable Lopez of Cameron County terminated the
employment of Deputy Constable Dario Diaz (“Diaz”).                    Diaz appealed his


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 08-40494

termination to the Civil Service Commission (the “Commission”), alleging that
he was dismissed for political reasons.        The Commission upheld Diaz's
termination. Under Texas law, a party has 30 days to appeal a Commission
decision by filing a petition in state district court. Tex. Loc. Gov't Code Ann. §
158.012(a) (Vernon 1999). Diaz filed a state-court petition within this time
period; however, the petition did not expressly indicate that it was an appeal
from the Commission’s decision. Rather, the petition was defined as a “cause of
action” against the County Defendants “for employment discrimination and
retaliation under the Texas and U.S. Constitutions, 42 U.S.C. § 1983, and local
[law].”
      The County Defendants removed the state-court petition to federal court,
alleging federal-question jurisdiction based on the constitutional and § 1983
claims in Diaz's petition.   A few days later, the County Defendants filed a
motion to dismiss for lack of subject matter jurisdiction. Specifically, the County
Defendants argued that Diaz failed to properly appeal pursuant to § 158.012(a),
rendering Diaz’s present lawsuit an "unauthorized collateral attack" on the
Commission’s decision. The district court denied the motion to dismiss and sua
sponte remanded the case back to state court. In addition, the court determined
that removal was wrongful and thus imposed attorney’s fees against the County
Defendants pursuant to 28 U.S.C. § 1447(c). The County Defendants appeal only
this award of attorney’s fees.
      We review the award of attorney’s fees upon remand for an abuse of
discretion. Hornbuckle v. State Farm Lloyds, 385 F.3d 538, 541 (5th Cir. 2004).
When a district court remands a case, it has discretion to award the “payment
of just costs and any actual expenses, including attorney fees, incurred as a
result of removal.”    28 U.S.C. § 1447(c).     However, this discretion is not
unlimited: “Absent unusual circumstances, courts may award attorney’s fees
under § 1447(c) only where the removing party lacked an objectively reasonable

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basis for seeking removal.” Martin v. Franklin Capital Corp., 546 U.S. 132, 141
(2005). In making this determination, the district court “do[es] not consider the
motive of the removing defendant.” Valdes v. Wal-Mart Stores, Inc., 199 F.3d
290, 292–93 (5th Cir. 2000). Rather, the court must consider the objective merits
of removal at the time of removal, irrespective of the ultimate remand. Id.
       Here, the district court awarded attorney’s fees because it found that the
County Defendants “lacked an objectively reasonable basis for seeking removal.”
This finding was based on what the court viewed as inconsistencies between the
County Defendants’ removal motion and subsequent motion to dismiss.
Specifically, the district court suggested that the County Defendants (1)
deliberately misconstrued Diaz’s state-court petition as a new lawsuit in order
to remove the case, and then (2) implicitly conceded that the state-court petition
was an appeal under § 158.012(a) in order to seek dismissal.1 Thus, much of the
court’s analysis focused on whether Diaz’s state-court petition was properly
construed as an appeal or an entirely new lawsuit.2
       For purposes of attorney’s fees under § 1447(c), this distinction is
irrelevant. If Diaz had filed a new lawsuit alleging federal claims, then the case
clearly would have been removable. See 28 U.S.C. § 1441(b) (providing for
removal of claims arising under federal law). Similarly, if Diaz had filed an


       1
         See Opinion & Order of February 15, 2008 (“[The County Defendants] may not argue
that the Plaintiff's petition is the initiation of a new lawsuit to justify removal, and then argue
that the petition is an appeal of an administrative judgment to secure dismissal.”); Transcript
of Hearing on Attorney's Fees, April 30, 2008 (“I feel that the position of the [County
Defendants] was inconsistent. . . . You know, it's clear to me that [the state-court petition] was
intended to be an appeal.”).
       2
         The district court stated that it was “clear” that Diaz's state-court petition was
intended to be an appeal pursuant to § 158.012(a). Although not necessary to our analysis, we
note that the County Defendants’ alternative construction is equally reasonable. Diaz’s
petition was defined as “a cause of action for employment discrimination and retaliation.” It
never referred to itself as an appeal, never invoked § 158.012(a), and never discussed the
Commission’s decision. Moreover, the petition specifically requested a jury trial, which is
unavailable in an appeal under § 158.012(a).

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appeal pursuant to § 158.012(a) involving federal claims, the case would also
have been removable. See Caldera v. County of El Paso, Tex., 520 F.Supp.2d
846, 854 (W.D. Tex. 2007) (noting that the defendant properly removed a state-
court appeal under § 158.012(a)).3 Regardless of the characterization of Diaz’s
state-court petition, the embedded constitutional and § 1983 claims provided an
“objectively reasonable basis for seeking removal.” See Martin, 546 U.S. at 141.
       Thus, the district court erred in focusing on the County Defendants’
subsequent motion to dismiss. Any inconsistencies between the removal motion
and the motion to dismiss are not relevant to the award of attorney's fees under
§ 1447(c). We look only to the objective merits of removal at the time of removal;
we do not consider the defendants' motives. Valdes, 199 F.3d at 292–93.
Because the state-court petition contained “an objectively reasonable basis for
seeking removal,” the district court abused its discretion in awarding attorney’s
fees under § 1447(c). See Martin, 546 U.S. at 141.
       For the foregoing reasons, the district court’s award of attorney's fees is
VACATED.




       3
          Although this Court has not explicitly addressed the removal of § 158.012(a) appeals
filed in state court, we have consistently assumed that such removals are proper. See Gray
v. Bexar County Sheriff's Civil Service Comm'n, 129 F.3d 610, *2 (5th Cir. 1997) (affirming the
district court’s decision after removal of the state-court appeal) (unpublished); James v. City
of Houston Texas, 48 Fed.Appx. 916, *3 (5th Cir. 2002) (acknowledging that the district court
removed both the federal claims and the state-law claim to review the Commission’s decision).
The parties identify no authority suggesting that removal of § 158.012(a) appeals involving
federal questions is improper.

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