                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 15a0416n.06

                                         No. 14-6498

                           UNITED STATES COURT OF APPEALS
                                                                                    FILED
                                FOR THE SIXTH CIRCUIT                         Jun 08, 2015
                                                                          DEBORAH S. HUNT, Clerk

STATE OF TENNESSEE DEPARTMENT                      )
OF CHILDREN’S SERVICES,                            )
                                                   )
       Plaintiff - Appellee,                       )
                                                   )
v.                                                 )   ON APPEAL FROM THE UNITED
                                                   )   STATES DISTRICT COURT FOR
SHAUN WINESBURGH,                                  )   THE EASTERN DISTRICT OF
                                                   )   TENNESSEE
       Defendant - Appellant,                      )
                                                   )
and                                                )
                                                   )
LAURA WALLACE,                                     )
                                                   )
       Defendant.                                  )

___________________________________                     OPINION


       Before: ROGERS and McKEAGUE, Circuit Judges; SARGUS, District Judge*

       SARGUS, District Judge. Shaun Winesburgh appeals the district court’s remand of this

case to state court. We AFFIRM.

                                                  I.

       The State of Tennessee Department of Children’s Services (“Department”) filed a

petition in the Juvenile Court of Hamilton County, Tennessee to terminate Winesburgh’s

parental rights over his two children. (Neal Decl. ¶ 6; ECF No. 10-2; Petition ¶ 3; ECF No. 10-

1.) Previously, that court awarded temporary custody to the Department and found that the
*
 The Honorable Edmund A. Sargus, Jr., Chief United States District Judge for the Southern
District of Ohio, sitting by designation.


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children were dependent, neglected, and severely abused. (Neal Decl. ¶ 9; Petition ¶ 3.) The

petition highlighted the Juvenile Court’s previous finding of severe abuse and further alleged that

Winesburgh and the children’s mother failed to provide a suitable home. The petition also

alleged that conditions were unlikely to adequately improve. (Petition ¶¶ 8, 10-11; ECF No. 10-

1.) In response, Winesburgh brought seven counterclaims, including an allegation that he is

mentally retarded and that the Department discriminated against him on this basis in violation of

the Americans with Disabilities Act (“ADA”). (Answer & Counterclaim; ECF No. 2; Am. Not.

Removal; ECF No. 23.)

       Winesburgh also removed the case to the United States District Court for the Eastern

District of Tennessee, asserting federal question jurisdiction under 28 U.S.C. § 1331 in light of

his ADA counterclaims. He further pressed that his disability discrimination counterclaims

made removal appropriate under 28 U.S.C. § 1443(1), which allows removal for a “person who

is denied or cannot enforce in the courts of such State a right under any law providing for . . .

equal civil rights.” (Am. Notice of Removal ¶¶ 4-6, 11.) The Department moved to remand,

arguing a lack of subject matter jurisdiction under § 1331 because its petition never asserted a

federal claim and Winesburgh could not use his counterclaims as the basis for removal. (Mem.

In Supp. Of Emergency Mot. For Remand at 4-6; ECF No. 10.) It also argued that removal was

not proper under § 1443(1) because that statute is limited to claims regarding race. (Reply at 5-

7; ECF No. 21.)

       The district court granted the motion to remand. First, it held that Winesburgh’s federal

counterclaims in response to the Department’s state-law-only claims could not provide subject

matter jurisdiction under § 1331. (Mem. at 4; ECF No. 26.) Second, the court held that

Winesburgh could not use § 1443(1) because he never alleged a denial of racial equality that he




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was unable to assert in Tennessee’s courts.           (Id. 4-5.)   After the district court denied

Winesburgh’s motion to reconsider (ECF No. 31), he brought this appeal.

                                                II.

       “Congress has placed broad restrictions on the power of federal appellate courts to review

district court orders remanding removed cases to state court.” Things Remembered, Inc. v.

Petrarca, 516 U.S. 124, 127 (1995). To the extent that Winesburgh challenges the district

court’s ruling that it lacked subject-matter jurisdiction under 28 U.S.C. § 1331, that concern falls

outside our scope of review. See Am. Mar. Officers v. Marine Engineers Beneficial Ass’n, Dist.

No. 1, 503 F.3d 532, 535 (6th Cir. 2007) (“[W]hen . . . the District Court relied upon a ground

that is colorably characterized as subject-matter jurisdiction, appellate review is barred by

§ 1447(d).”) (quoting Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224 (2007)); see

also Warthman v. Genoa Twp. Bd. of Trustees, 549 F.3d 1055, 1059 (6th Cir. 2008) (holding

remand not reviewable where district court held that the complaint invoked only state-law claims

and thus subject matter jurisdiction did not exist). This bar on our review helps “prevent delay in

the trial of remanded cases by protracted litigation of jurisdictional issues.” Kircher v. Putnam

Funds Trust, 547 U.S. 633, 650 (2006) (Scalia, J., concurring) (quoting Thermtron Prods., Inc. v.

Hermansdorfer, 423 U.S. 336, 351 (1976)).

       However, remand of a case removed under 28 U.S.C. § 1443(1)—relied on by

Winesburgh—may be reviewed “by appeal or otherwise.” 28 U.S.C. § 1447(d). Though neither

party addresses how much deference we give the district court’s decision on this point, this Court

recognized in an unpublished decision that our standard of review “would appear to be de novo.”

See Godsey v. Miller, 9 F. App’x 380, 382 (6th Cir. 2001) (per curiam). We have no reason to

doubt that here, cf. Jerome-Duncan, Inc. v. Auto-By-Tel, L.L.C., 176 F.3d 904, 907 (6th Cir.




                                                 3
1999) (applying de novo review to denial of motion to remand), and in any event, the district

court’s decision was appropriate under any standard of review.

       Winesburgh insists that he correctly removed this case under § 1443(1). That statute

provides for removal of an action “[a]gainst any person who is denied or cannot enforce in the

courts of such State a right under any law providing for the equal civil rights of citizens of the

United States . . . .” Pointing to his counterclaims and pressing that the ADA is a civil rights act,

Winesburgh asserts that his case falls under the plain language of the statute.

       But for § 1443(1) to apply under this Court’s binding precedent, the right denied must

arise under a federal law that “provides for specific civil rights stated in terms of racial

equality.” Conrad v. Robinson, 871 F.2d 612, 614-15 (6th Cir. 1989) (emphasis added) (citing

Johnson v. Mississippi, 421 U.S. 213 (1975)). Winesburgh never asserted that the Department

discriminated against him on account of his race. Instead, he alleges discrimination due to his

disability. Because § 1443(1) applies to racial discrimination, not disability discrimination,

Winesburgh cannot use this vehicle for removal.

       Nevertheless, Winesburgh asks this Court to cast Conrad aside because it predates the

ADA. Even if we could ignore this court’s previous published decisions, see Sykes v. Anderson,

625 F.3d 294, 319 (6th Cir. 2010) (“[A] published prior panel decision remains controlling

authority unless an inconsistent decision of the United States Supreme Court requires

modification of the decision or this Court sitting en banc overrules the prior decision.”) (internal

quotation marks omitted), we would decline to do so. The Supreme Court has “conclude[d]” in

light of the § 1443(1)’s history “that the phrase ‘any law providing for . . . equal civil rights’

must be construed to mean any law providing for specific civil rights stated in terms of racial

equality.” Georgia v. Rachel, 384 U.S. 780, 792 (1966). As noted by the Supreme Court, the




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removal provision dates back to the Civil Rights Act of 1866, when it allowed removal by

persons denied some of the “same” rights as were “enjoyed by white citizens.” Id. at 788-89.

When the current language—“any law providing . . . equal civil rights”—arrived in 1874, “no

substantial indication” existed that this language “was intended to expand the kinds of ‘law’ to

which” removal applied. Id. at 789. Rather, it “seem[ed] clear” that “Congress intended in that

phrase only to include laws comparable in nature to the Civil Rights Act of 1866.” Id. at 790.

Thus, the district court correctly concluded that Winesburgh cannot use § 1443(1) here. See

Com. of Ky. v. Franklin, 70 F.3d 1271, 1995 WL 696905, at *1 (6th Cir. 1995) (table) (“We also

conclude that the action was properly remanded, as § 1443 is restricted to cases raising an issue

of racial discrimination.”); Robinson v. Eichler, 795 F. Supp. 1253, 1258 n.5 (D. Conn. 1992)

(finding § 1443(1) inapplicable where removal was based on the ADA).

       Moreover, § 1443(1) remains unavailable for a second, independent reason. For removal,

Winesburgh must show that he is “unable to or [is] denied the opportunity to enforce these

specified federal rights in the courts of the state in question.” See Conrad, 871 F.2d at 614-15

(citing Johnson, 421 U.S. at 219). He has not done so here.

       Winesburgh alleges that he cannot bring his ADA claims in state court and asserts that

Tennessee has no equivalent antidiscrimination law. But state courts generally have concurrent

jurisdiction over federal causes of action unless Congress provides otherwise or some “disabling

incompatibility between the federal claim and state-court adjudication” exists. Gulf Offshore Co.

v. Mobil Oil Corp., 453 U.S. 473, 478 (1981). Winesburgh presents nothing that questions the

general rule of concurrent jurisdiction, and this court has previously held that “[s]tate courts have

concurrent jurisdiction over ADA claims.” Hapgood v. City of Warren, 127 F.3d 490, 494 (6th

Cir. 1997); see also Anderson v. Ajax Turner Co., No. 01A01-9807-CH-00396, 1999 WL




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976517, at *2 (Tenn. Ct. App. Oct. 28, 1999) (noting that Congress “elected to permit concurrent

jurisdiction” and holding ADA’s exhaustion requirement applies to state-court plaintiffs the

same as it does for federal-court plaintiffs); Pruett v. Wal-Mart Stores, Inc., No. 02A01-9610-

CH-00266, 1997 WL 729260, at *11-12 (Tenn. Ct. App. Nov. 25, 1997) (remanding for a jury

trial a plaintiff’s ADA failure-to-accommodate claim).

       Still, Winesburgh maintains that the Juvenile Court of Hamilton County—where this case

would be remanded—could not hear these federal claims. But even if true, this observation

misses the mark. The relevant inquiry is whether “the courts of the state in question” are closed

to Winesburgh’s claims. Conrad, 871 F.2d at 615 (emphasis added). Winesburgh presents no

authority for the proposition that that the specific state court that will receive the remanded case

must be able to adjudicate the dispute. See City of Greenwood, Miss. v. Peacock, 384 U.S. 808,

827 (1966) (“It is not enough to support removal under § 1443(1) to allege or show that the

defendant’s federal equal civil rights have been illegally and corruptly denied . . . or that the

defendant is unable to obtain a fair trial in a particular state court.”). And, as this Court has

recognized, defendants resort to state courts to vindicate their federal rights “except in the rare

situations where it can be clearly predicted by reason of the operation of a pervasive and explicit

state or federal law that those rights will inevitably be denied by the very act of bringing the

defendant to trial in the state court.” Conrad, 871 F.2d at 615 (quoting City of Greenwood, 384

U.S. at 828). Winesburgh points to no law that will prevent him from protecting his rights in

state court, and any argument that the Department inevitably denied his federal rights by

petitioning the Juvenile Court of Hamilton County cannot withstand the above analysis.

       We AFFIRM.




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