                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                        June 7, 2005
                     UNITED STATES COURT OF APPEALS

                                  TENTH CIRCUIT                    PATRICK FISHER
                                                                             Clerk


 JANICE LYNN KING f/k/a Ziegler,

          Plaintiff-Appellant,

 v.

 PAUL JOSEPH ZIEGLER; DAVID E.
 BRUNS, in his official capacity as
 Shawnee County District Court Judge
                                                      No. 04-3502
 of Division 12; EVELYN Z. WILSON,
                                               (D.C. No. 04-CV-4158-SAC)
 in her official capacity as Shawnee
                                                        (D. Kan.)
 County District Court Judge of
 Division 5; LORI L. YOCKERS, in
 her official capacity as Administrative
 Hearing Officer of Shawnee County
 District Court; SHERRI KELLER, in
 her official capacity as Shawnee
 County District Court Case Manager ,

          Defendants-Appellees.


                             ORDER AND JUDGMENT *




      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. This
Order and Judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be
cited under the terms and conditions of 10th Cir. R. 36.3.
Before EBEL, McKAY and HENRY, Circuit Judges.


      Plaintiff-Appellant Janice Lynn King appeals 1 the district court’s decision

remanding this case to Kansas state court and requiring King to pay $200 in

attorney fees. Defendant-Appellee Paul Joseph Ziegler has requested that this

court dismiss this appeal. We GRANT that motion and DISMISS King’s appeal

because we lack jurisdiction to review the remand order. We do have jurisdiction,

however, to AFFIRM the fee award.

      King commenced this divorce action in Kansas state court in 1999. In

November 2004, she removed the divorce action to federal district court and

sought to add several state-court officials as “third-party defendants.” (R. doc.

1.) The district court, however, remanded this case back to state court, holding

that the federal court lacked jurisdiction over King’s divorce action and that King

had not followed proper removal procedures. (R. doc. 10 at 3-5.)

      “An order remanding a case to the State court from which it was removed is

not reviewable on appeal or otherwise.” 28 U.S.C. § 1447(d). Nonetheless,

“[a]ppellate review is barred by § 1447(d) only when the district court remands on

grounds permitted by § 1447(c).” Topeka Housing Auth. v. Johnson, 404 F.3d

1245, 1248 (10th Cir. 2005) (quotation omitted). “Section 1447(c) specifically


      1
            We grant King’s motion to proceed on appeal in forma pauperis. See
28 U.S.C. § 1915(a)(1).

                                        -2-
allows district courts to order remand if there has been a ‘defect in removal

procedure,’ or if it determines, at any time prior to final judgment, that it ‘lacks

subject matter jurisdiction.’” Kennedy v. Lubar, 273 F.3d 1293, 1297 (10th Cir.

2001) (quoting 28 U.S.C. § 1447(c)). The district court remanded on both these

grounds. (R. doc. 10 at 3-5.) Therefore, “§ 1447(d) absolutely prohibits appellate

review of the order, and we adhere firmly to this prohibition.” Kennedy, 273 F.3d

at 1297.

      In removing this divorce action to federal court, King invoked, among other

statutes, 28 U.S.C. § 1443. 2 (R. doc. 1 at 1.) This court would have jurisdiction

to review “an order remanding a case to the State court from which it was

removed pursuant to section 1443.” 28 U.S.C. § 1447(d); see also First Union

Mortgage Corp. v. Smith, 229 F.3d 992, 994 (10th Cir. 2000). “The Supreme

Court has established a two part test for section 1443 removal petitions in


      2
             In relevant part, § 1443 provides that

             [a]ny of the following civil actions or criminal prosecutions[]
      commenced in a State court may be removed by the defendant to the
      district court of the United States for the district and division
      embracing the place wherein it is pending:

                   (1) Against 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, or of all persons within the jurisdiction
             thereof.


                                          -3-
Johnson v. Mississippi, 421 U.S. 213 . . . (1975).” Colorado v. Lopez, 919 F.2d

131, 132 (10th Cir. 1990).

      First, it must appear that the right allegedly denied the removal
      petitioner arises under a federal law providing for specific civil
      rights stated in terms of racial equality. A state court defendant’s
      claim that prosecution and conviction will violate rights under
      constitutional or statutory provisions of general applicability or under
      statutes not protecting against racial discrimination is insufficient for
      removal. Second, it must appear that the removal petitioner is denied
      or cannot enforce the specified federal rights in the courts of [the]
      State.

Id. (quotations, citations omitted). We agree with the district court that King has

failed to satisfy the requirements for removal under section 1443. Thus, this

court lacks jurisdiction to consider King’s appeal from the remand order.

      This court does have jurisdiction to review the district court’s decision to

require King to pay Ziegler’s counsel $200 in attorney fees and costs expended in

defending the removal (R. doc. 10 at 5-6.). See Johnson, 404 F.3d at 1248.

Section 1447(c) provides that “[a]n order remanding the case may require

payment of just costs and any actual expenses, including attorney fees, incurred as

a result of the removal.”

      This court reviews the district court’s decision to grant attorney fees and

costs for an abuse of discretion and the court’s underlying legal analysis de novo.

See Johnson, 404 F.3d at 1248. “No showing of bad faith is necessary to justify

the award. What is required to award fees, however, is a showing that the


                                         -4-
removal was improper ab initio.” Id. (quotation omitted). In this case, removal

was improper. See id. The district court did not abuse its discretion in awarding

Ziegler’s attorney $200 in fees and costs. See id.

      We, therefore, AFFIRM the district court’s award of fees. We otherwise

grant Ziegler’s motion and DISMISS the appeal. King’s motions to supplement

the record are DENIED. All other pending motions, including King’s requests for

contempt citations, a restraining order (Aplt. Reply Br. at 14-15.), and stays of the

state-court proceedings are DENIED as moot.




                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




                                         -5-
