     Case: 13-30155   Document: 00512515198    Page: 1   Date Filed: 01/29/2014




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

                                                                 FILED
                                                             January 29, 2014

                                No. 13-30155                    Lyle W. Cayce
                                                                     Clerk

TAMMY BELMON BELL,

                                          Plaintiff–Appellant
v.

JON C. THORNBURG,

                                          Defendant–Appellee



                Appeal from the United States District Court
                   for the Western District of Louisiana


                      ON PETITION FOR REHEARING
            (Opinion December 30, 2013, No. 13-30155, – F.3d —)


Before STEWART, Chief Judge, KING, and PRADO, Circuit Judges.
PER CURIAM:
      Plaintiff-Appellant Tammy Belmon Bell’s petition for rehearing is
DENIED. Defendant-Appellee Jon C. Thornburg’s petition for rehearing to
clarify opinion is GRANTED.
      The opinion, No. 13-30155, – F.3d —, is hereby WITHDRAWN, and the
attached substitute opinion is ISSUED in its place.
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                                  No. 13-30155

EDWARD C. PRADO, Circuit Judge:
      Tammy Belmon Bell (“Bell”), a former employee of Jon C. Thornburg
(“Thornburg”), the standing bankruptcy trustee for the Western District of
Louisiana, filed suit in state court alleging that she had been terminated
because of her race in violation of the Louisiana Employment Discrimination
Law (“LEDL”), Louisiana Revised Statutes §§ 23:301–03, 23:323. Thornburg
removed Bell’s suit to federal court under the federal officer removal statute, 28
U.S.C. § 1442(a)(1). Bell moved to have the case remanded to state court, while
Thornburg moved for summary judgment. The district court determined that
removal was proper, and that Thornburg should be granted summary judgment
because he did not qualify as an “employer” under the LEDL. Bell appeals both
determinations. Because removal was proper and Thornburg does not qualify
as an employer under the LEDL, we affirm.
           I. FACTUAL AND PROCEDURAL BACKGROUND
A.    Factual Background
      The record is almost entirely devoid of any statements, affidavits, or other
evidence. The following facts are taken exclusively from the pleadings in Bell’s
state-court petition. See generally Cavallini v. State Farm Mut. Auto Ins. Co.,
44 F.3d 256, 264 (5th Cir. 1995) (“Limiting the removal jurisdiction question to
the claims in the state court complaint . . . permits early resolution of which
court has jurisdiction, so that the parties and the court can proceed with, and
expeditiously conclude, the litigation.”).
      Bell, an African-American woman, was employed in the office of the
Chapter 13 standing trustee for the Western District of Louisiana for fourteen
years, most recently as its office manager. In 2008, Thornburg began serving as
the standing trustee for Chapter 13 bankruptcies in the Western District of
Louisiana. Bell claims that she and Thornburg disagreed frequently, and the
quality of her work life deteriorated after Thornburg’s arrival. In October 2010,

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Bell was required to submit to a “peer review,” which three trustees from the
National Organization of Chapter 13 Trustees administered. Two of the trustees
interviewed Bell, while a third sought input from the local bankruptcy judge.
Based in part on statements by the bankruptcy judge that he disliked Bell, the
peer review panel suggested to Thornburg that Bell be fired.              Thornburg
disagreed, but nonetheless believed Bell should be given a different position.
Bell remained on the office’s payroll while Thornburg looked for another position
for her in the office, but problems between Thornburg and Bell persisted, and
Thornburg ultimately terminated Bell on April 4, 2011. She was replaced by a
white woman, who Bell contends was less qualified.
B.    Procedural Background
      On March 6, 2012, Bell sued Thornburg in Louisiana state court, alleging
that she had been terminated because of her race in violation of the LEDL.
Thornburg removed to federal district court in the Western District of Louisiana
on the theory that, as a standing trustee, he was a person acting under an officer
of the United States and thus entitled to remove the suit under the federal
officer removal statute, 28 U.S.C. § 1442(a)(1). After the removal order was
granted, Thornburg moved for summary judgment, arguing that he had not
employed twenty or more employees for twenty or more weeks, as is required to
qualify as an “employer” under the LEDL, Louisiana Revised Statute §
23:302(2). Bell, meanwhile, moved to have the case remanded to state court,
arguing that Thornburg was a private citizen not covered by the federal officer
removal statute.
      The magistrate judge assigned to the case found that this Court’s decision
in Cromelin v. United States, 177 F.2d 275 (5th Cir. 1949), precluded the
application of § 1442(a)(1) to Thornburg. Cromelin considered whether the
Federal Tort Claims Act applied to bankruptcy trustees and held that a “trustee,
like a receiver, is an officer of [the] court, appointed by the court, directed by the

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court, and paid by the court from the funds in the court. He is in no sense an
agent or employee or officer of the United States.” 177 F.2d at 277. Therefore
Thornburg, the magistrate judge reasoned, could not invoke §1442(a)(1), which
by its terms applies only to “[t]he United States or any agency thereof or any
officer (or any person acting under that officer) of the United States or of any
agency thereof.” The magistrate judge also noted, however, that regardless of
whether § 1442(a)(1) applied to Thornburg, removal under any part of § 1442
carries with it the additional requirement that the mover assert “a colorable
claim of federal immunity or other federal defense.” See Mesa v. California, 489
U.S. 121, 124, 129 (1989). Because Thornburg had provided nothing more than
the conclusory statement in his notice of removal that “he has a valid and
colorable federal defense to all claims made,” the magistrate judge determined
that removal had been improper and recommended remanding the case to state
court.
         The district court disagreed with the magistrate judge’s conclusion that
removal was improper. The court clarified that even if § 1442(a)(1) covers only
officers of the United States and those “acting under” them, § 1442(a)(3) provides
the same removal privileges to officers of the courts of the United States. See 28
U.S.C. § 1442(a)(3) (offering the federal officer removal privilege to “[a]ny officer
of the courts of the United States, for or relating to any act under color of office
or in the performance of his duties”). Thornburg, who, according to the district
court, was an officer of the courts, was thus free to remove under the statute.
With respect to the magistrate judge’s determination that Thornburg had failed
to meet the requirement that he aver a federal defense, the court relied on Bell’s
allegation in her state-court petition that Thornburg “used the ‘peer review’ as
the reason for his alleged discriminatory actions leading to Plaintiff’s
termination.” The court concluded that because the peer review purportedly



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                                       No. 13-30155

involved the presiding bankruptcy judge, Thornburg had sufficiently averred a
colorable federal defense, and it denied Bell’s remand request.1
       The district court then turned to Thornburg’s motion for summary
judgment. The court agreed with Thornburg that because he had not employed
more than twenty people during twenty or more weeks in the last year, he could
not be considered an employer under the LEDL. The court thus concluded that
the LEDL did not apply to Thornburg, and granted his summary judgment
motion. Bell timely appealed.
                                    II. DISCUSSION
A.     Standard of Review
       This Court reviews the denial of a motion to remand de novo. Manguno
v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 722 (5th Cir. 2002). The Court
also reviews a grant of summary judgment de novo, viewing all evidence in the
light most favorable to the nonmoving party and drawing all reasonable
inferences in that party’s favor. Pierce v. Dep’t of the U.S. Air Force, 512 F.3d
184, 186 (5th Cir. 2007). “[S]ummary judgment is proper if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (internal quotation marks omitted).
B.     Whether the District Court Properly Exercised Jurisdiction over
       Bell’s Suit Against Thornburg
       The federal officer removal statute, 28 U.S.C. § 1442, creates an exception
to the well-pleaded complaint rule. The statute states, in relevant part:


       1
         We note that in his opposition to Bell’s motion to remand, and in his objections to the
magistrate judge’s report and recommendation, Thornburg did not agree with any of Bell’s
factual allegations. Instead, he argued only that his acts (as portrayed by Bell) must be
understood as having been “performed in his official capacity as Chapter 13 Trustee,” and
arising out of “[Bell's] status as an employee with the Chapter 13 Trustee office.”

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      (a) A civil action or criminal prosecution that is commenced in a
      State court and that is against or directed to any of the following
      may be removed by them to the district court of the United States
      for the district and division embracing the place wherein it is
      pending:

            (1) The United States or any agency thereof or any officer (or
            any person acting under that officer) of the United States or
            of any agency thereof, in an official or individual capacity, for
            or relating to any act under color of such office or on account
            of any right, title or authority claimed under any Act of
            Congress for the apprehension or punishment of criminals or
            the collection of the revenue. . . .

            (3) Any officer of the courts of the United States, for or
            relating to any act under color of office or in the performance
            of his duties . . . .

28 U.S.C. § 1442. Thus, to invoke the federal officer removal statute, Thornburg
must both act under an officer of the United States and have averred a colorable
federal defense.     See Mesa, 489 U.S. 133–34.      We address each of these
requirements in turn.
      1.    Whether Thornburg “act[s] under” an officer of the United States
            such that removal under the federal officer removal statute is
            available to him
      Bell argues that this Court should remand her claim to state court
because, based on this Court’s decision in Cromelin, Thornburg cannot take
advantage of the federal officer removal statute and remove the case under
§ 1442(a)(1). See Cromelin, 177 F.2d at 277 (holding that a bankruptcy trustee
is “an officer of [the] court, appointed by the court, directed by the court, and
paid by the court” but “is in no sense an agent or employee or officer of the
United States”). Thornburg, however, claims that he is entitled to removal
under § 1442 because he acts under and closely with the United States Trustee.




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      We hold that Thornburg is a “person acting under” an officer of the United
States who may invoke § 1442(a)(1) of the federal officer removal statute. While
Bell cites Cromelin for support, she fails to acknowledge that it was decided in
1949, before the Bankruptcy Reform Act of 1978 changed the way the
bankruptcy trustee system was administered. Thus, Cromelin does not control
our decision here. See United States Trustee Program Policies and Practices
Manual,       vol.    1,   ch.    1-4.1       (Oct.   2011),     available       at
http://www.justice.gov/ust/eo/ust_org/ustp_manual/docs/Volume_1_Overview.pdf
(hereinafter “Trustee Manual”). Due in part to concern that the courts would not
fairly adjudicate the rights of debtors, creditors, and third parties, the
Bankruptcy Reform Act removed the authority to perform many administrative
duties from the courts and instead concentrated them under a new position in
the Department of Justice—specifically, the U.S. Trustee. See id. The U.S.
Trustee’s administrative duties include appointing Chapter 13 standing trustees.
28 U.S.C. § 586(b); Trustee Manual, Chapter 1-4.3. But, the Bankruptcy Reform
Act of 1978 also means that the district court’s conclusion that Thornburg could
invoke § 1442(a)(3) was based on an inaccurate assumption, because the U.S.
Trustee is an officer of the Department of Justice, not of the court.
      In concluding that Thornburg meets the “acting under” requirement, we
rely on Watson v. Philip Morris Cos., 551 U.S. 142 (2007), the Supreme Court’s
most recent elaboration on this requirement. In Watson, the Court considered
whether the Federal Trade Commission’s close supervision of Philip Morris’s
activities meant the company was “acting under an officer of the United States.”
Id. at 145 (emphasis and internal quotation marks omitted). Although the Court
held that § 1442(a)(1) was unavailable to Philip Morris, id., it reiterated previous
decisions’ guidance that the statute be “liberally construed,” id. at 147 (quoting
Colorado v. Symes, 286 U.S. 510, 517 (1932)).          The Court explained that
§ 1442(a)(1) may apply “to private persons ‘who lawfully assist’ [a] federal officer

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‘in the performance of his official duty,’” id. at 151 (quoting Davis v. South
Carolina, 107 U.S. 597, 600 (1883)), or to private parties who “were ‘authorized
to act with or for [federal officers or agents] in affirmatively executing duties
under . . . federal law,’” id. (alterations in original) (quoting City of Greenwood
v. Peacock, 384 U.S. 808, 824 (1966)). The Court made clear that “simply
complying with the law” is not sufficient; “‘acting under’ must involve an effort
to assist, or to help carry out, the duties or tasks of the federal superior.” Id. at
152 (emphases omitted).
      Though Bell argues that Chapter 13 standing trustees are private citizens,
Watson makes clear that this fact alone does not bar the use of § 1442(a)(1). See
551 U.S. at 151. Chapter 13 standing trustees like Thornburg are appointed
pursuant to federal law by the U.S. Trustee for the purpose of assisting the U.S.
Trustee with especially heavy Chapter 13 bankruptcy caseloads. See 28 U.S.C.
§ 586(b); 28 C.F.R. § 58.2. The U.S. Trustee supervises the standing trustee,
who is tasked with carrying out the provisions of the Bankruptcy Code. 28
U.S.C. § 586(b). Unlike Philip Morris in Watson, standing trustees receive
delegated authority; they do not merely comply with the law. They both “assist”
and “carry out” the duties and tasks of their federal superiors. Thus, we
conclude that Thornburg “act[s] under” officers of the United States and fall
within § 1442(a)(1)’s purview.
      2.     Whether Thornburg has averred “a colorable federal defense”
      Bell also claims that Thornburg is not entitled to invoke the federal officer
removal statute because he has failed to aver a colorable federal defense and
failed to provide any evidence to establish a federal defense. Thornburg counters
that, because his employment actions relative to Bell were conducted under the
color of office and while performing his official duties, he has averred a colorable
federal defense and was entitled to remove this case under the federal officer
removal statute. He points this Court to two earlier decisions, Willingham v.

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Morgan, 395 U.S. 402 (1969) and Palermo v. Rorex, 806 F.2d 1266 (5th Cir.
1987), to support his arguments.
      The Supreme Court has made clear that “all the various incarnations of
the federal officer removal statute . . . require the averment of a federal defense.”
Mesa, 489 U.S. at 133–34. But, the officer seeking removal need not “win his
case [by proving his federal defense] before he can have it removed.”
Willingham, 395 U.S. at 407. He must only allege “a causal connection between
what the officer has done under asserted official authority and the state
[action],” Mesa, 489 U.S. at 131 (quoting Maryland v. Soper, 270 U.S. 9, 33
(1926)); see also Jefferson Cnty. v. Acker, 527 U.S. 423, 431 (1999) (“Under the
federal officer removal statute, suits against federal officers may be removed
despite the nonfederal cast of the complaint; the federal-question element is met
if the defense depends on federal law.”).
      In Willingham, the Supreme Court considered whether the bare assertion
of federal qualified immunity sufficed to allow removal under § 1442(a)(1). See
395 U.S. at 406–08. The case involved a state claim by a prisoner in a federal
penitentiary that prison officials had assaulted him. Id. at 403. The prison
officials removed, stating that anything they may have done to the prisoner was
“in the course of their duties as officers of the United States of America . . . and
under color of such offices.” Id. On the issue of how strong the evidentiary
showing of immunity had to be to obtain removal, the Court stated, “One of the
primary purposes of the removal statute . . . was to have [colorable defenses
arising out of federal officers’ duty to enforce federal law] litigated in the federal
courts.” Id. at 407. “In fact,” the Court went on, “one of the most important
reasons for removal is to have the validity of the defense of official immunity
tried in a federal court. The officer need not win his case before he can have it
removed.” Id.



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       Having settled the question of whether an officer need prove, rather than
merely assert, a federal defense, the Court proceeded to discuss the distinct issue
of whether the record in the case would support a finding that the suit involved
“conduct under color of office, and that it [was], therefore, removable.” Id. It
observed that, in a civil suit of the type at issue in Willingham, “it was sufficient
for petitioners to have shown that their relationship to [a] respondent derived
solely from their official duties.” Id. at 409. The Court found that the prison
officials had made the requisite showing by asserting that “their only contact
with respondent occurred inside the penitentiary, while they were performing
their duties.” Id. It was enough that the prison officials were “on duty, at their
place of federal employment, at all the relevant times. If the question raised is
whether they were engaged in some kind of ‘frolic of their own’ . . . they should
have the opportunity to present their version of the facts to a federal, not a state,
court.” Id.
       We hold that Thornburg has averred a colorable federal defense. He has
alleged that his “employment actions relative to [Bell] were performed under the
color of his office, in the performance of his duties thereunder, after input from
the peer review process, and involving communication with and involvement of
the United States Trustee and a United States bankruptcy judge.”2 This kind
of assertion compares favorably to that found sufficient in Willingham, where
the prison officials in affidavits declared that “the only contact [they] had with
respondent was inside the walls of the United States Penitentiary . . . in
performance of [their] official duties.” 395 U.S. at 407–08 (internal quotation
mark omitted).


       2
        We understand Thornburg to mean only that the facts alleged in Bell’s pleadings
implicate the involvement of the United States Trustee and a United States bankruptcy judge,
not that Thornburg accepts those allegations as true. See Palermo, 806 F.2d at 1269
(“Appellees relied upon the allegations in the Complaints to show that the acts complained of
were within the scope of their employment.”).

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       Our decision in Palermo also bolsters our conclusion that Thornburg has
averred a colorable federal defense. Palermo involved a state law wrongful
death claim stemming from the workplace harassment of an IRS employee who
ultimately committed suicide. 806 F.2d at 1268. We held that because the “state
court Complaint specifically alleges that the actions complained of were
connected with [the deceased’s] status as an employee of the IRS,” and the
defendants acted “upon the authority[,] consent and approval of [their]
supervisors,” “there [could] be no doubt that the acts alleged in the Complaint[]
were performed ‘under color of federal office.’” Id. at 1269. The fact that the IRS
employees were sued in their individual capacities for acts that were allegedly
maliciously motivated was immaterial because the employees were entitled to
present their version of the facts in a federal court. See id. at 1269–70 (applying
Willingham). Here, as in Palermo, the only claims Bell makes stem from
employment actions performed in the course of the administration of
Thornburg’s federal duties.      Thus, under Willingham and Palermo, and
considering the Supreme Court’s guidance that § 1442(a)(1) “must be ‘liberally
construed,’” we hold that Thornburg has averred a colorable federal defense and
was entitled to remove this case under the federal officer removal statute. See
Watson, 551 U.S. at 147.
C.     Whether Thornburg is Entitled to Summary Judgment Because He
       Does Not Qualify As An Employer Under the LEDL
       Having determined that removal was proper in this case, we now address
whether Thornburg qualifies as an employer under the LEDL. The statute
defines an employer as:
       a person, association, legal or commercial entity, the state, or any
       state agency, board, commission, or political subdivision of the state
       receiving services from an employee and, in return, giving
       compensation of any kind to an employee. The provisions of this
       Chapter shall apply only to an employer who employs twenty or
       more employees within this state for each working day in each of

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      twenty or more calendar weeks in the current or preceding calendar
      year.
La. Rev. Stat. Ann. § 23:302(2) (emphasis added).
      Bell does not dispute that Thornburg has not employed the requisite
number of people to qualify as an employer. Instead she argues that Thornburg
should be considered part of the larger “association” of “the Chapter 13 system,”
which she alleges employs more than 125 people in the state. We need not credit
this assertion because Bell provides no evidence for it. See Fed. R. Civ. P.
56(c)(1). But, even if we were to credit Bell’s claim about the number of people
employed within “the Chapter 13 system” in the state, Thornberg would still not
meet the LEDL’s definition of employer. Nothing Bell claims bears on whether
Thornburg himself employed a sufficient number of people to be held liable
under the LEDL. Thus, we hold summary judgment was proper because
Thornburg does not qualify as an employer under the LEDL.
                             III. CONCLUSION
      For the foregoing reasons, we AFFIRM.




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