                         United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   _____________

                                   No. 96-3092MN
                                   _____________

National Association for the           *
Advancement of Colored People,         *
Minneapolis Branch on behalf of        *
themselves and all others similarly    *
situated; Bryston Hill, by his next friend
                                       *
Lisa Hill; Sophie Krahnke, by her next *
friends Steven Krahnke and Jane        *
McLeod; Miquel McElroy, by his next    *
friend Annie Pearl McElroy; Gregory    *
McFarland, by his next friend Linda    *
McFarland; Solveig Mebust; Anna        *
Mebust, by their next friends Bruce    * On Remand from the Supreme Court
Lynn Mebust and Kirsten Ann Scribner   * of the United States.
Mebust; Diamond Porter, by his next    *
friend Jamie Porter,                   *
                                       *
                   Appellants,         *
                                       *
     v.                                *
                                       *
Metropolitan Council, a Public Body    *
Corporate and Politic,                 *
                                       *
                   Appellee.           *
                                 _____________

                                   Filed: May 29, 1998
                                   _____________

Before McMILLIAN, FAGG, and HANSEN, Circuit Judges.
                           _____________
FAGG, Circuit Judge.

        Our earlier opinion in this case contained two independent rulings. First, we held
the district court properly used its power under the All Writs Act to take jurisdiction
over state-law claims filed in Minnesota state court that threatened the integrity of an
earlier federal consent decree. See NAACP, Minneapolis Branch v. Metropolitan
Council, 125 F.3d 1171, 1173-74 (8th Cir. 1997) (NAACP). Second, we affirmed the
district court’s later grant of the Metropolitan Council’s motion to dismiss those claims
as precluded by an earlier federal judgment. See id. at 1174-75. In Rivet v. Regions
Bank of Louisiana, 118 S. Ct. 921 (1998), the Supreme Court held that Federated Dep’t
Stores, Inc. v. Moitie, 452 U.S. 394, 397 n.2 (1981), did not authorize the removal of
state-law claims to federal court based on an affirmative defense of claim preclusion.
The Supreme Court then vacated and remanded our decision in NAACP for further
consideration in light of Rivet. See NAACP v. Metropolitan Council, 118 S. Ct. 1162
(1998). Because we upheld the district court’s decision to take jurisdiction of the state-
law claims in NAACP based on the All Writs Act, not on Moitie or claim preclusion,
we conclude our decision is not at odds with the Court’s holding in Rivet. Thus, we
reinstate our earlier decision and again affirm the district court.

       At issue in Rivet was the power of federal courts to exercise federal-question
removal jurisdiction under the artful pleading doctrine articulated in Moitie, 452 U.S.
at 397 n.2, based on a removing party’s contention the removed state-law claim is
precluded by an earlier federal judgment. In Moitie, seven plaintiffs filed federal
antitrust actions in federal district court. The consolidated suits were dismissed for lack
of standing. Two of the plaintiffs, Moitie and Brown, refiled in state court, basing their
claims exclusively on state law. The defendants removed these lawsuits to federal
district court, which denied Moitie’s and Brown’s motion to remand and dismissed
their claims as precluded by the earlier judgment. See id. at 395-97. On appeal, the
Ninth Circuit upheld the district court’s removal jurisdiction, see id. at 397 n.2, but
reversed its res judicata ruling, see id. at 397. The Supreme Court then reversed the



                                           -2-
Ninth Circuit on the res judicata issue, see id. at 402, but agreed “at least some of
[Moitie’s and Brown’s state-law] claims had a sufficient federal character to support
removal,” id. at 397 n.2. The Court declined to question the district court’s factual
finding that Moitie and Brown “had attempted to avoid removal jurisdiction by
‘artful[ly]’ casting their ‘essentially federal law claims’ as state-law claims.” Id.
(alteration and internal quotations in original).

        After Moitie the circuit courts attempted to determine what it is that gives a
state-law claim a sufficiently federal character to warrant removal under footnote two
of the Court’s opinion. Some circuits found the necessary federal character in the
federal law of claim preclusion. On this view, Moitie authorizes removal “where a
plaintiff files a state cause of action completely precluded by a prior federal judgment
on a question of federal law.” Carpenter v. Wichita Falls Indep. Sch. Dist., 44 F.3d
362, 370 (5th Cir. 1995); accord In re Brand Name Prescription Drugs Antitrust Litig.,
123 F.3d 599, 612 (7th Cir. 1997) (removal allowed under Moitie where “the sole basis
for filing a state suit is to get around . . . a federal judgment”), cert. denied sub nom.
Abbott Lab. v. Huggins, 118 S. Ct. 1178 (1998); Sullivan v. First Affiliated Sec., Inc.,
813 F.2d 1368, 1376 (9th Cir. 1987) (holding Moitie permits removal only “of state
claims precluded by the res judicata effect of a federal judgment”); Ultramar Am. Ltd.
v. Dwelle, 900 F.2d 1412, 1415 (9th Cir. 1990) (clarifying that the earlier federal
judgment must have resolved questions of federal law). The Second Circuit took a
different approach to Moitie’s artful pleading doctrine, emphasizing choice of forum.
See Travelers Indem. Co. v. Sarkisian, 794 F.2d 754, 757-61 (2d Cir. 1986). Noting
that preclusion-based removal “would seem to violate the well-established rule that
removal jurisdiction may not rest on a federal defense,” id. at 761 n.10, the Second
Circuit held Moitie authorizes removal where a plaintiff first elects to bring a federal
claim in federal court, and then files in state court a state-law claim whose elements are
virtually identical to those of the earlier federal claim, see id. at 760-61. In the Second
Circuit’s view, footnote two in Moitie stands for the proposition that a plaintiff who




                                           -3-
elects to proceed in federal court “[is] not free to abuse the dual court system” by later
refiling a practically identical lawsuit in state court, artfully pled under state law. Id.
at 761.

       Recognizing “Moitie’s enigmatic footnote . . . has caused considerable confusion
in the circuit courts,” Rivet, 118 S. Ct. at 926 (internal quotations omitted), the
Supreme Court in Rivet clarified the footnote. Rivet concerned a state-law-based
property dispute filed in state court after a federal Bankruptcy Court had issued orders
concerning the same parcel of property. See id. at 924. Relying on federal claim
preclusion, the Rivet defendants removed the state-court action to federal district court,
which denied the plaintiffs’ motion to remand and granted the defendants’ cross-motion
for summary judgment. See id. The district court based both of its rulings on the
claim-preclusive effect of the Bankruptcy Court’s orders. See id. Unlike in NAACP,
where we upheld under the All Writs Act the district court’s jurisdiction over state-law
claims that threatened the integrity of a federal consent decree the court was
supervising, the Fifth Circuit in Rivet affirmed the district court’s removal jurisdiction
“under the artful pleading exception to the well-pleaded complaint doctrine,” Rivet v.
Regions Bank of Louisiana, F.S.B., 108 F.3d 576, 589 (5th Cir. 1997), because the
removed state-law claim was “‘completely precluded by a prior federal judgment on
a question of federal law,’” id. at 586 (quoting Carpenter, 44 F.3d at 370). The
Supreme Court disagreed with the Fifth Circuit’s decision, holding “removal is
improper in such a case.” See Rivet, 118 S. Ct. at 923. Claim preclusion, the Court
pointed out, is an affirmative defense, and “‘a case may not be removed to federal court
on the basis of a federal defense.’” Id. at 925 (quoting Franchise Tax Bd. v.
Construction Laborers Vacation Trust, 463 U.S. 1, 14 (1983)). The Court made clear
that “Moitie did not create a preclusion exception to [this] rule.” Id. at 926.

       On remand, the NAACP contends that a defense of claim preclusion served as
the basis for removal in this case, so Rivet requires us to remand the case to state court.
We disagree. In NAACP we affirmed the district court’s decision to take jurisdiction



                                           -4-
over state-law claims based on the All Writs Act, not on claim preclusion, and we
expressly declined to decide whether the claims were removable under Moitie’s artful
pleading doctrine. See NAACP, 125 F.3d at 1173-74. To review, NAACP started out
as a state-law-based class action brought against numerous defendants in Minnesota
state court. The NAACP and a class consisting of all Minneapolis public school
students (collectively the students) claimed violations of the Education and Equal
Protection Clauses of the Minnesota Constitution. The students’ claims against one of
the defendants, the Metropolitan Council (Met Council), all had to do with housing-
related policies and practices. Just six months earlier, however, the Met Council had
bound itself to make specific changes in those policies and practices under a federal
consent decree (the Hollman decree). The Hollman decree concluded an earlier Fair
Housing Act lawsuit brought by the NAACP and a class some of whose members also
belonged to the student class. Under the terms of the Hollman decree, the parties
agreed not to relitigate “any matters alleged in this action,” and the District Court for
the District of Minnesota retained jurisdiction to supervise compliance until the year
2002. See id. at 1172-73.

        When the NAACP suit was filed in state court, the Met Council removed the
case to the District Court for the District of Minnesota. On the students’ motion, the
district court remanded to state court the claims against all the defendants except the
Met Council. The district court based its jurisdiction over the students’ claims against
the Met Council on two grounds: the All Writs Act, 28 U.S.C. § 1651(a) (1994), and
Moitie’s footnote two. See NAACP, 125 F.3d at 1172. Although we did not mention
it in our earlier opinion, the district court followed the Second Circuit’s forum-election
approach to Moitie, not the claim-preclusion approach the Supreme Court rejected in
Rivet. The Met Council then filed a motion to dismiss the students’ claims as
precluded by Hollman, which the district court granted. See id. On appeal, we held
the district court properly exercised jurisdiction under the All Writs Act. See id. at
1173-74. “Because we conclude removal was proper under the All Writs Act,” we
added, “we need not determine whether removal was also warranted under the artful



                                           -5-
pleading doctrine.” Id. at 1174. We also affirmed the district court’s separate claim-
preclusion ruling. See id. at 1174-75. Considering the district court did not base
removal on Hollman’s preclusive effect, we conclude our opinion in NAACP affirming
that ruling is not contrary to the Court’s holding in Rivet.

       In summary, agreeing with the Second, Sixth, and Seventh Circuits, see id. at
1173-74, we upheld the district court’s exercise of removal jurisdiction under the All
Writs Act “‘to effectuate and prevent the frustration of orders [the district court] ha[d]
previously issued in its exercise of jurisdiction otherwise obtained,’” id. at 1173
(quoting United States v. New York Tel. Co., 434 U.S. 159, 172 (1977)). The Third
Circuit also shares our view, see Davis v. Glanton, 107 F.3d 1044, 1047 n.4 (3d Cir.),
cert. denied, 118 S. Ct. 159 (1997), as does the concurrence in the one appellate
decision that disagrees with us, see Hillman v. Webley, 115 F.3d 1461, 1470 (10th Cir.
1997) (Kelly, Jr., J., concurring in result). Simply put, we concluded the district court’s
power to do what it did in NAACP flowed from its ongoing supervisory jurisdiction
under the Hollman consent decree. Repeating this conclusion, we emphasize “the All
Writs Act is not a jurisdictional blank check [that] district courts may use whenever
they deem it advisable.” Ivy v. Diamond Shamrock Chems. Co. (In re Agent Orange
Prod. Liab. Litig.), 996 F.2d 1425, 1431 (2d Cir. 1993); see also Pennsylvania Bureau
of Correction v. United States Marshals Serv., 474 U.S. 34, 43 (1985) (“Although [the
All Writs] Act empowers federal courts to fashion extraordinary remedies when the
need arises, it does not authorize them to issue ad hoc writs whenever compliance with
statutory procedures appears inconvenient or less appropriate.”). Finally, we recognize
the Supreme Court in Rivet noted that a federal court may protect its judgments by
enjoining state-court proceedings under the relitigation exception to the Anti-Injunction
Act. See Rivet, 118 S. Ct. at 926 n.3. We mentioned the relitigation exception in our
opinion, see NAACP, 125 F.3d at 1174, but that exception was not involved in our
decision because none of the parties made it an issue in the case. The NAACP asked
this court to decide whether the district court could use the All Writs Act to protect its




                                           -6-
consent decree, and we concluded it could. Footnote three in Rivet points out another
procedural option, but we do not read footnote three to rule out the one we approved.

      Because this court’s holding in NAACP is not at odds with Rivet, we reinstate
our opinion reported at 125 F.3d 1171 and again affirm the district court.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                         -7-
