                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             June 10, 2005
                                  TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 IN THE MATTER OF BABY C, a
 minor child,

          Plaintiff - Appellee,
                                                          No. 04-3299
 v.                                                         (Kansas)
                                                  (D.Ct. No. 04-CV-4044-SAC)
 ROSEMARY DENISE PRICE;
 DAVID M. PRICE,

          Defendants - Appellants.


                             ORDER AND JUDGMENT *


Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges.



      After examining the briefs and 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); 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          This order and judgment is not binding precedent except under the doctrines of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.
       The present case arises out of a dispute over the adoption of Baby C. Baby

C was given up for adoption to third-parties shortly after birth by the biological

mother. The biological father, David Price, and his wife, Rosemary, contested the

adoption in the Kansas state courts. After a series of adverse rulings in the state

courts, the Prices, appearing pro se, filed a notice of removal in the United States

District Court for the District of Kansas under 28 U.S.C. § 1441 alleging a

multitude of federal and state constitutional and statutory violations. The district

court denied the attempt at removal and remanded the cases to the state courts.

This appeal followed. The Prices contest the district court’s remand of their cases

to state court and its award of attorney’s fees and costs. We affirm.

                                     I. Background

       The state court proceedings commenced on May 4, 2001, when the adoptive

parents filed a petition for the adoption of Baby C in the Shawnee County,

Kansas, District Court (“SCDC”) (Case No. 01 A 48). In that proceeding, the

biological mother consented to the adoption and the petition named David Price

as the biological father. On May 10, 2001, the adoptive parents petitioned the

SCDC to sever the father’s parental rights to Baby C. After a hearing on July 22-

23, 2002, 1 the SCDC entered an order terminating David Price’s parental rights to


       1
        Initially, the district court had severed David Price’s parental rights and entered
an adoption decree after he failed to appear at a hearing on June 22, 2001. On July 16,
2001, David Price successfully moved to have the court set aside the default termination

                                             -2-
Baby C and later denied his motion to reconsider.

      David Price appealed the SCDC’s ruling to the Court of Appeals for the

State of Kansas, which affirmed on December 19, 2003 (Case No. 03 90035 A).

The Kansas Supreme Court denied David Price’s petition for review on March 30,

2004. On January 5, 2004, during the pendency of David Price’s appeal,

Rosemary Price filed a petition for stepparent adoption with the SCDC (Case No.

04 A 3). After the denial of review in the first case by the Kansas Supreme

Court, the adoption by the adoptive parents was finalized by the SCDC on April

23, 2004

      On May 5, 2004, David and Rosemary Price, pro se, filed a Notice of

Removal in the United States District Court for the District of Kansas (“USDC”)

seeking to remove both David and Rosemary’s state cases (Case Nos. 01 A 48 &

04 A 3) as well as the appeal of David’s case (Case No. 03 90035 A). The Prices

raised a multitude of federal constitutional and statutory claims as well as state

constitutional and statutory claims based on the termination of David Price’s

parental rights and the adoption of Baby C. The adoptive parents filed a motion

for dismissal claiming procedural and jurisdictional defects with the notice of

removal.

      On June 10, 2004, the USDC remanded the cases on three grounds: 1) the



and adoption orders.

                                         -3-
pleadings did not establish that the notice of removal had been filed within the

thirty-day time requirement of 28 U.S.C. § 1446 (b); 2) the complaints and

petitions did not contain any questions arising under federal law; and 3) the notice

of removal did not satisfy the requirements for removal of a civil rights case

under 28 U.S.C. § 1443. The USDC also ordered the Prices to pay $1000 in

attorney’s fees and costs to the adoptive parents under 28 U.S.C. § 1447(c). The

Prices filed a motion for reconsideration on June 22, 2004. The district court

denied the motion on July 27, 2004. The Prices filed a notice of appeal to this

Court on August 9, 2004. They challenge the remand of their cases and the award

of attorney’s fees and costs. 2

                                     II. Discussion

A. Remand

       “Under 28 U.S.C. § 1441 a defendant in state court may remove the case to

federal court when a federal court would have had jurisdiction if the case had

been filed there originally.” Johnson, 404 F.3d at 1247. Under § 1446(b), a


       2
         This Court has recently held that remand orders for lack of subject-matter
jurisdiction involving cases originally removed under § 1441 are insulated from review.
Topeka Housing Auth. v. Johnson, 404 F.3d 1245, 1247-48 (10th Cir. 2005). However,
certain civil rights cases removed under § 1443 are not subject to this bar. Id. at 1248.
Here, the Prices attempted to remove their cases under § 1441 but raised several civil
rights claims which the district court discussed under § 1443. Additionally, the award of
fees and costs are still reviewable as well as the underlying legal analysis supporting the
award. Id. Accordingly, we review the district court’s order denying removal and
remanding the cases to state court.

                                            -4-
defendant in a state court action desiring to remove a civil action must file the

notice of removal:

      within thirty days after the receipt by the defendant, through service or
      otherwise, of a copy of the initial pleading setting forth the claim for
      relief upon which such action or proceeding is based, or within thirty
      days after the service of summons upon the defendant if such initial
      pleading has then been filed in court and is not required to be served on
      the defendant, whichever period is shorter.

In order to establish federal question jurisdiction, the federal question must be

“presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar

Inc. v. Williams, 482 U.S. 386, 392 (1987). Except for narrow circumstances not

present here, “a case may not be removed to federal court solely because of a

defense or counterclaim arising under federal law.” Johnson, 404 F.3d at 1247;

see also Holmes Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826,

830-31 & n.2 (2002). Generally, the presumption is “against removal

jurisdiction.” Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir. 1995). The

removing party has the burden to demonstrate the appropriateness of removal

from state to federal court. McNutt v. General Motors Acceptance Corp., 298

U.S. 178, 189 (1936). Thus, doubtful cases must be resolved in favor of remand.

      With these principles in mind, we have carefully reviewed the record, and

agree with the district court’s conclusions. First, as a procedural matter, the

Prices have not complied with the requirements of § 1446(b). According to the

record, David Price received notice of the petition for adoption filed in the

                                         -5-
Shawnee County District Court on May 12, 2001. Under § 1446(b), he had 30

days to file a notice of removal. He did not actually file his notice of removal

until May 5, 2004, almost three years after he had received notice of the petition

for adoption. In the interim, the state court proceeding was completed, Price

appealed, the Court of Appeals for the State of Kansas affirmed the district

court’s ruling, and the Kansas Supreme Court denied review. The removal

statutes are not a mechanism for relitigating cases already decided by state courts,

nor for removing cases on appeal in the state courts. 3 Finally, Rosemary Price

cannot remove her state court adoption petition (Case No. 04 A 3) to federal court

simply because she is not the defendant in that case. She voluntarily chose to file

her case in state court and is ineligible to remove it. See 28 U.S.C. § 1441(a)

(“[A]ny civil action brought in a State court . . . may be removed by the defendant

or defendants . . . .”) (emphasis added).

       Second, and equally fatal, the underlying state court adoption case did not

state a federal question on the face of the plaintiff’s properly pleaded complaint;

here the adoptive parents’ petition for adoption. Adoption is quintessentially a



       3
         By attempting to remove state court cases that have already been concluded, the
Prices are attempting an end-run around the Rooker-Feldman doctrine. Rooker-Feldman
precludes the losing party in a state court action from filing suit in federal court to set
aside the state court judgment. See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 125
S. Ct. 1517, 1522-23 (2005). This is precisely what the Prices are trying to do and their
attempt cannot be countenanced.

                                            -6-
state law issue and all of the Price’s claims in federal court constitute putative

defenses or counterclaims to the adoption based on federal law. Moreover, many

of the putative defenses or counterclaims are suspect. For example, the Prices

argue the federal courts should step in because “new laws need to be written

and/or adopted to protect a third party of interest, namely the intended

mother/step-mother, in an ‘at birth adoption?’” (Appellants’ Br. 22.) This is

precisely the type of case that is meant to be excluded from removal by the

properly pleaded plaintiff’s complaint rule articulated in Caterpillar. Thus, the

district court lacked subject-matter jurisdiction and was correct to remand the

cases to state court based on procedural defects and lack of jurisdiction.

B. Attorney Fees

      The Prices also challenge the district court’s award of $1000 in costs to the

adoptive parents. Section 1447(c) allows a court to “require payment of just cost

and any actual expenses, including attorney fees, incurred as a result of the

removal.” A court’s decision to grant a fee award “is reviewed for abuse of

discretion while the underlying legal analysis is reviewed de novo.” Suder v. Blue

Circle, Inc., 116 F.3d 1351, 1352 (10th Cir. 1997). “No showing of bad faith is

necessary to justify the award,” Johnson, 404 F.3d at 1248, only “a showing that

the removal was improper ab initio.” Suder, 116 F.3d at 1352. That the Prices

are pro se litigants does not prevent the court from imposing sanctions. Johnson,


                                          -7-
404 F.3d at 1248; Haworth v. Royal, 347 F.3d 1189, 1192 (10th Cir. 2003). The

district court determined that $1000 was “less than the actual expenses and costs

incurred by the adoptive parents in challenging federal jurisdiction over these

removed cases” and that “the award of $1000 is fair and reasonable in light of the

pro se status of the removing parties.” (R., Doc. 6 at 7 n.1.) We cannot say the

district court abused its discretion in awarding this sum and there was no

reasonable argument for removal. See Huffman v. Saul Holdings Ltd. P’ship, 262

F.3d 1128, 1135 (10th Cir. 2001) (review for reasonableness under § 1447(c)).

                                  III. Conclusion

      The district court’s order remanding the cases to state court is AFFIRMED.

      The district court’s order awarding attorney’s fees and costs to the adoptive

parents is AFFIRMED.

      The Prices have also filed three Motions to Supplement the Record

regarding case numbers DA 8893 and DA 9076, In the Matter of Bret D. Landrith.

Because they fail to address the defects discussed above, the motions are

DENIED.

      Price’s application to proceed in forma pauperis is GRANTED.


                                       Entered by the Court:

                                       Terrence L. O’Brien
                                       United States Circuit Judge


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