                                                        United States Court of Appeals
                                                                 Fifth Circuit

                                                              FILED
                                                         December 6, 2004
               IN THE UNITED STATES COURT OF APPEALS
                                                       Charles R. Fulbruge III
                       FOR THE FIFTH CIRCUIT
                                                               Clerk
                       _____________________

                            No. 03-60927
                       _____________________


          CITY OF MCCOMB, MISSISSIPPI

                               Plaintiff - Appellant

                v.

          DAVID W MYERS

                              Defendant - Appellee
___________________________________________________________

        Appeal from the United States District Court
     for the Southern District of Mississippi, Jackson
                       No. 3:02-CV-1397
___________________________________________________________

Before KING, Chief Judge, and HIGGINBOTHAM and DAVIS,
Circuit Judges.

PER CURIAM:*

     This appeal arises from a dispute between Plaintiff-

Appellant City of McComb City, Mississippi (McComb) and

Defendant-Appellee David W. Myers (Myers).     Myers is a

member of McComb’s Board of Selectmen (Board).     He also


* 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that this opinion should not be published and is not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.



                            - 1 -
represents a portion of the city in the Mississippi House of

Representatives (House).   As a result of a dispute with

other members of the Board, McComb sought to end Myers’s

dual service on the Board and in the House by passing an

amendment to McComb’s city charter which prohibited a public

official in McComb from serving as an elected official of

any governmental entity which either appropriates funds to

McComb or has the power to grant or deny a request by McComb

for any action relating to the operation of the municipal

government of McComb.

     On August 14, 2002, McComb filed a lawsuit in the

Circuit Court of Pike County, Mississippi seeking a

declaratory judgment holding that, subject to final formal

approval as required by law, the charter amendment is a

valid exercise of municipal authority by McComb which

“violates no state law, federal law, or the constitutions of

the United States or the State of Mississippi;” that

independent of the charter amendment, simultaneous service

in the Mississippi Legislature and the Board violates the

separation of powers doctrine of the Mississippi

constitution; and that such dual service vacates one of the

two conflicting offices.




                            - 2 -
     Myers promptly removed the case to the United States

District Court for the Southern District of Mississippi.        On

summary judgment, the district court held, in a lengthy

opinion discussing Mississippi law, that neither the

Mississippi Constitution nor the common law rule against

holding incompatible offices forbids Myers’s simultaneous

service in the House and on the Board.       McComb then appealed

the judgment to this court.

     Upon review, it is evident that McComb’s state court

lawsuit was improperly removed.       Removal of a civil action

from state court is allowed only if the district courts of

the United States would have original jurisdiction over the

action.   28 U.S.C. § 1441(a) (2000); Caterpillar Inc. v.

Williams, 482 U.S. 386, 392 (1987).       Absent diversity of

citizenship, which does not exist here, federal question

jurisdiction is required.   Whether a federal court would

have federal question jurisdiction over the action is

governed by the well-pleaded complaint rule.       Caterpillar,

482 U.S. at 392.   This rule states that “[a] case arises

under federal law if it is apparent from the face of the

plaintiff’s complaint . . . that the plaintiff’s cause of

action was created by federal law . . . .” ERWIN CHEMERINSKY,

FEDERAL JURISDICTION § 5.2.3, at 276 (4th ed. 2003); accord

                              - 3 -
Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152

(1908).

     From what we have set out above about McComb’s

complaint, it is clear that McComb’s cause of action deals

exclusively with state law.    This is how the district court

viewed the dispute, rendering a judgment based solely on

state law issues.   The only mention of federal law in

McComb’s complaint consisted of its one-line request for a

declaration that the amendment did not violate federal law.

This request is akin to the anticipation of a federal

defense.   It is well established that federal question

jurisdiction is not created through a plaintiff’s

anticipation of a federal defense.     See, e.g., Rivet v.

Regions Bank of La., 522 U.S. 470, 475 (1998) (“A defense is

not part of a plaintiff's properly pleaded statement of his

or her claim.”);    Mottley, 211 U.S. at 152 (“It is not

enough that the plaintiff alleges some anticipated defense

to his cause of action, and asserts that the defense is

invalidated by some provision of the Constitution of the

United States.”).   Accordingly, we hold that federal

question jurisdiction was unavailable here and this case was

improperly removed from state court.




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     For the foregoing reasons, we VACATE the judgment of

the district court and REMAND with instructions to remand

the case to the Circuit Court of Pike County, Mississippi.

Costs shall be borne by Myers.




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