Thompson v. Housing Authority of New Orleans, et al

Filing 20

ORDER granting in part 6 Motion to Remand to State Court. IT IS FURTHER ORDERED that the Court shall retain jurisdiction over the Plaintiffs claims arising under federal law and that the case shall be restored to the trial docket upon motion of a party if circumstances change, so that it may proceed to final disposition; this order shall not prejudice the rights of the parties to this litigation. Signed by Judge Susie Morgan on 9/19/16. (cg) (Additional attachment(s) added on 9/19/2016: # 1 Remand Letter) (cg).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
FRED J. THOMPSON,
Plaintiff

CIVIL ACTION

VERSUS

NO. 16-11856

HOUSING AUTHORITY OF NEW
ORLEANS, ET AL.,
Defendants

SECTION: “E” (2)

ORDER AND REASONS
Before the Court is a Motion to Remand filed by Plaintiff Fred J. Thompson. 1 The
motion is opposed. 2 Thompson filed a reply memorandum in further support of his
motion to remand. 3 On September 7, 2016, the Court heard oral argument from the
parties, and ordered the parties to submit supplemental briefing on the applicability of
the Pullman abstention doctrine to this case. 4 Only the Defendants submitted a
memorandum. 5 For the reasons set forth below, the Plaintiff’s Motion to Remand is
GRANTED IN PART.
BACKGROUND
The Plaintiff, Fred J. Thompson, brings claims against Defendants Housing
Authority of New Orleans (“HANO”), Robert E. Anderson, and Gregg Fortner
(collectively, the “Defendants”) claiming he was denied the protection of the state civil
service laws under a statute that violates the Louisiana Constitution. 6 The Plaintiff also

R. Doc. 6.
R. Doc. 8.
3 R. Doc. 16.
4 R. Doc. 17.
5 R. Doc. 18.
6 R. Doc. 1-4.
1

2

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brings federal law claims arising under 42 U.S.C. §§ 1983, 1985, and 1986. 7 Thompson
was a police officer for HANO in New Orleans, Louisiana. 8 Defendant HANO is a public
housing authority that assists in providing affordable housing to low and moderateincome families in New Orleans. 9 Defendant Robert E. Anderson was the Director of
Public Safety for HANO, and Defendant Gregg Fortner was the Executive Director for
HANO. 10 On May 9, 2016, Thompson filed suit against the Defendants in the Civil District
Court for the Parish of Orleans, State of Louisiana. 11 This case was removed to this Court
on the basis of federal question jurisdiction on June 27, 2016. 12
The Plaintiff’s claims stem from an incident in which Thompson, a HANO police
officer, was terminated for alleged insubordination. 13 Thomson alleges, on February 20,
2016, he and his partner, Officer Anthony Lindsey, drove HANO unit 904 to General
Degaulle Drive and L.B. Landry Avenue in New Orleans to assist HANO police officer
Edgar Baron, who had stopped a pedestrian. 14 When Thompson and Officer Lindsey
arrived, they observed a black male handcuffed in the rear of Officer Baron’s HANO police
unit. 15 According to Thompson, on February 22, 2016, Sergeant Harry Stanley met with
him and Officer Lindsey, and informed them that one of them would have to “ride” with
Officer Baron. 16 Plaintiff informed Sgt. Stanley that he did not want to ride with Officer
Baron because he believed Baron had a history of violating HANO residents’ civil rights. 17

Id.
Id. at 2.
9 Id. at 1.
10 Id.
11 Id.
12 R. Doc. 1.
13 See generally R. Doc. 1-4.
14 Id. at 2.
15 Id.
16 Id. at 3.
17 Id.
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Thompson alleges Sgt. Stanley did not order Plaintiff to ride with Officer Baron, but
notified Lieutenant Tyrone Martin of Plaintiff’s opposition.18 After being ordered to
report to HANO’s main office, Thompson alleges Lt. Martin instructed him to give a
written statement about Officer Baron’s February 20 stop and include a statement of why
Thompson did not wish to ride with Officer Baron. 19 According to Thompson, he complied
with the order and wrote a statement about the incident. 20
On February 25, 2016, Thompson alleges, he met with Defendant Robert
Anderson, Director of Public Safety/Chief for HANO, and was instructed to sign a letter
reprimanding him for violations of the HANO Police Department Code of Conduct for
insubordination and conduct unbecoming of a HANO officer. 21 On February 29, 2016,
Thompson alleges he received a letter from Defendant Gregg Fortner, Executive Director
of HANO, notifying Thompson of his intention to terminate him and informing
Thompson that he could be terminated at any time because he held a probationary
status. 22 According to Thompson, he was told he had the right to file a grievance in writing
within five business days, and he was immediately placed on administrative leave during
the grievance period. 23 Thompson alleges, on March 3, 2016, he timely filed a grievance
letter, asserting that he was never given a copy of the HANO Police Department’s Code of
Conduct, was never officially ordered by Sgt. Stanley to ride with Officer Baron, and was
already given a written reprimand on February 25, 2016 for the alleged violations for
which he was being terminated. 24 According to Thompson, on March 9, 2016, Defendant

Id.
Id.
20 Id. at 4.
21 Id.
22 Id.
23 Id.
24 Id. at 5.
18
19

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Fortner conducted a hearing during which Defendant Fortner allegedly forbade Plaintiff
or Plaintiff’s counsel from recording the hearing, which Thompson alleges is in violation
of Louisiana Revised Statutes section 40:2531. 25 On March 14, 2016, Thompson received
notice from Defendant Fortner that he was terminated.
Thompson alleges he was not afforded the opportunity to call witnesses or examine
HANO’s witnesses, and that he was not given protections guaranteed to civil service
employees by the State Department of Civil Service and the Police Officer’s Bill of Rights,
as mandated by Article X, Section 2 of the Louisiana Constitution and Louisiana Revised
Statutes section 40:2531. 26 Additionally, Thompson challenges the constitutionality of
Louisiana Revised Statutes section 40:539(C)(8)(b), which provides HANO “shall not be
considered to be an instrumentality of the state for the purposes of Article X, Section 1(A)
of the Constitution of Louisiana, and employees of the authority shall not be included in
the state civil service.” 27 Finally, Thompson asserts equal protection and due process
claims under 42 U.S.C. §§ 1983, 1985, and 1986.28
The Defendants removed Thompson’s claims to this Court on June 27, 2016, citing
the Court’s jurisdiction over federal question cases pursuant to 28 U.S.C. § 1331. 29 In the
Notice of Removal and Opposition to the Motion for Remand, the Defendants argue this
Court has original jurisdiction over the claims arising under federal law and supplemental

Id.
Id.
27 Id. at 9; La. R.S. § 40:539(C)(8)(b). After section 40:539 was amended in 2013 to exempt HANO from
state civil service requirements, the legislature made three additional amendments to exempt the
Cottonport Housing Authority, Denham Springs Housing Authority, and the Housing Authority of Oil
City. Id. §§ 40:539(C)(8)(c)–(e).
28 Id. at 7.
29 R. Doc. 1.
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jurisdiction pursuant to 28 U.S.C. § 1367 over Thompson’s state-law claims and therefore,
the Court should remove the entire case. 30
On July 14, 2016, Thomson filed a motion to remand this case to state court. 31
Thompson argues that because this Court and the state court have concurrent jurisdiction
over the claims arising under federal law, the entire case should be remanded. 32
Thompson also argues that the entire case should be remanded because state law
predominates in the matter and the claims involve unsettled issues of state law that
should be decided by a Louisiana court. 33
On September 7, 2016, the Court heard oral argument on the motion to remand. 34
The Court ordered the parties to file memoranda regarding whether Thompson’s claim
that Louisiana Revised Statutes section 40:539(C)(8)(b) is unconstitutional under the
Louisiana Constitution triggers the application of the Pullman abstention doctrine. 35 The
Defendants filed a memorandum in support of their position that the Pullman abstention
doctrine does not apply. 36
LAW AND ANALYSIS
“Federal courts are courts of limited jurisdiction, possessing only that power
authorized by Constitution and statute.” 37 However, “federal courts have a ‘virtually
unflagging obligation . . . to exercise the jurisdiction given them.’” 38 Pursuant to 28 U.S.C.
§ 1441, a defendant may remove an action from state court to federal court if the action is
Id.; R. Doc. 8.
R. Doc. 6.
32 R. Doc. 6-1.
33 Id.
34 R. Doc. 17.
35 Id.
36 R. Doc. 18.
37 Gunn v. Minton, 133 S. Ct. 1059, 1064 (2013) (internal quotation marks and citation omitted).
38 Wilson v. Valley Elec. Membership Corp., 8 F.3d 311, 313 (5th Cir. 1993) (quoting Colorado River Water
Conservation Dist. v. U.S., 424 U.S. 800, 817 (1976)).
30
31

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one over which the federal court possesses original jurisdiction. 39 The removing party
bears the burden of proving federal subject-matter jurisdiction exists and thus removal is
proper. 40 To determine whether jurisdiction exists, the federal court considers the claims
in the state court pleadings as they existed at the time of removal. 41 Any doubt as to
whether removal jurisdiction is proper should be resolved in favor of remand because
removal jurisdiction must be strictly construed. 42
In this case, there is no allegation of diversity jurisdiction; thus, there must be
federal question jurisdiction for removal to be proper. 43 District courts have federal
question jurisdiction over “all civil actions arising under the Constitution, laws, or treaties
of the United States.” 44 Cases “arise under” federal law in one of two ways. Most
commonly, federal question jurisdiction is invoked when a plaintiff pleads a cause of
action created by federal law. 45 “There is, however, another longstanding, if less
frequently encountered, variety of federal ‘arising under’ jurisdiction . . . .” 46 That is,
federal question jurisdiction will lie if “a well-pleaded complaint establishes . . . that the
plaintiff’s right to relief necessarily depends on resolution of a substantial question of
federal law.” 47

39 28 U.S.C. § 1441; Manguno v. Prudential Prop. and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002)
(citation omitted).
40 Manguno, 276 F.3d at 723 (citations omitted).
41 See id.
42 Acuna v. Brown & Root, Inc., 200 F.3d 335, 339 (5th Cir. 2000); Willy v. Coastal Corp., 855 F.2d 1160,
1164 (5th Cir. 1988).
43 See Willy, 855 F.2d at 1164.
44 28 U.S.C. § 1331.
45 See Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312 (2005).
46 Id.
47 Singh v. Duane Morris LLP, 538 F.3d 334, 337–38 (2008) (internal quotation marks and citation
omitted). For removal purposes, “[t]he presence or absence of federal-question jurisdiction is governed by
the ‘well-pleaded complaint rule,’ which provides that federal jurisdiction exists only when a federal
question is presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar Inc. v. Williams,
482 U.S. 386, 392 (1987). The well-pleaded complaint rule recognizes the principle that a plaintiff is the
master of his complaint. Carpenter v. Wichita Falls Ind. School Dist., 44 F.3d 363, 366 (5th Cir. 1995).
There are, however, narrow exceptions to the well-pleaded complaint rule. One such exception exists when

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The Plaintiff argues the allegations in his petition do not present a claim created
by federal law, raise a substantial issue of federal law, or provide any other statutory,
constitutional, or jurisprudential basis for the exercise of federal court jurisdiction. 48 For
this reason, the Plaintiff contends this case must be remanded to state court for lack of
federal subject-matter jurisdiction. The Defendants contend the petition alleges many
claims that arise under and are governed by federal law, such as claims under 42 U.S.C.
§§ 1983, 1985, and 1986. 49
Federal question jurisdiction exists when a plaintiff’s right to relief necessarily
depends on the resolution of a substantial question of federal law. 50 A case falls under this
special category of cases “if a federal issue is: (1) necessarily raised, (2) actually disputed,
(3) substantial, and (4) capable of resolution in federal court without disrupting the
federal-state balance approved by Congress. Where all four of these requirements are met,
. . . jurisdiction is proper because there is a ‘serious federal interest in claiming the
advantages thought to be inherent in a federal forum,’ which can be vindicated without
disrupting Congress’s intended division of labor between state and federal courts.” 51
“Ultimately, whether a federal issue embedded in the matrix of a state law claim will
support federal question jurisdiction entails a pragmatic assessment of the nature of the
federal interest at stake . . . .” 52

Congress creates an exception by expressly providing that a state court action asserting only state law claims
may be removed to federal court. See Beneficial Nat’l Bank, et al. v. Anderson, 539 U.S. 1, 6 (2003). The
other exception is where “a federal statute wholly displaces the state-law cause of action through complete
preemption.” Id. at 8. Absent these extraordinary circumstances, the well-pleaded complaint rule governs.
Carpenter, 44 F.3d at 367; Caterpillar, 482 U.S. at 392.
48 R. Doc. 6-1; R. Doc. 16.
49 R. Doc. 8.
50 See Gunn v. Minton, 133 S. Ct. 1059, 1065 (2013) (quoting Empire Healthchoice Assurance, Inc. v.
McVeigh, 547 U.S. 677, 699 (2006)).
51 Id. (quoting Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 313–14 (2005)).
52 Howery v. Allstate Ins. Co., 243 F.3d 912, 917 (5th Cir. 2001).

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There is no question that this Court has original jurisdiction over the Plaintiff’s
claims under 42 U.S.C. §§ 1983, 1985, and 1986, which arise under federal law. 53 Federal
courts, however, have the discretion to abstain from exercising jurisdiction under the
Pullman abstention doctrine. 54 For the Pullman abstention doctrine to apply, two
elements must be present: (1) a federal constitutional challenge to a state action, and (2)
an unclear issue of state law, that, if resolved by the state court, would obviate the need
for the federal court to rule on the federal constitutional issue. 55 Under the Pullman
abstention doctrine, a federal court should abstain from adjudicating the constitutionality
of a state law “when difficult and unsettled questions of state law must be resolved before
a substantial federal constitutional question can be decided.” 56 Under Pullman, the
federal court stays the federal claims, and defers to the state court, giving it an opportunity
to clarify the state law in a way that will make the federal court’s constitutional ruling
unnecessary.
In their supplemental memorandum, the Defendants admit that a state-court
interpretation of whether section 40:539(C)(8)(b) is constitutional would “narrow the
adjudication of the federal claims.” 57 The Defendants, however, argue the Pullman
abstention doctrine does not apply in this case because there is no “close or undecided
issue of law that should serve as the basis of this Court’s abstention” 58 because Louisiana

28 U.S.C. § 1331; see also Raines v. City of Starkville, 986 F.2d 1418 (5th Cir. 1993).
R.R. Comm’n of Tx. v. Pullman Co., 312 U.S. 496 (1941).
55 See Nationwide Mut. Ins. Co. v. Unauthorized Practice of Law Comm., 283 F.3d 650, 653 (5th Cir.
2002).
56 Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 236 (1984) (quoting Pullman, 312 U.S. at 500).
57 Id. at 10.
58 R. Doc. 18 at 4.
53

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Revised Statutes section 40:539(C)(8)(b) is unambiguous and is clearly constitutional
under the Louisiana Constitution. 59
In 1996, the U.S. Department of Housing and Urban Development (“HUD”)
determined HANO was in substantial default pursuant to 42 U.S.C. § 1437d(g), which
authorized HUD to force HANO into federal receivership. 60 When under federal
receivership, the Secretary of HUD exempted HANO from state civil service laws because
the state civil service requirements impeded HANO’s ability to correct its substantial
default. 61 Federal law allows the Secretary of HUD to preempt state laws and waive state
civil service requirements. 62 The Secretary was found to have properly exercised this
authority in McGowan v. U.S. Dept. of Housing & Urban Development. 63 HANO
remained under federal receivership, and therefore exempt from state civil service laws,
until June 30, 2014, when it was returned to local control. 64 In anticipation of HANO
exiting federal receivership, the Louisiana Legislature amended Louisiana Revised
Statutes section 40:539(C)(8)(b) to provide that HANO was not to be considered an

Id. at 6.
HUD Takes Over the Housing Authority of New Orleans, Report to the Honorable Richard H. Baker,
House of Representatives, U.S. GENERAL ACCOUNTING OFFICE, http://www.gao.gov/products/RCED-96-67
(May 1996); see also HUD Returns Housing Authority of New Orleans to Local Control, NOLA.GOV (May
28,
2014),
http://www.nola.gov/mayor/press-releases/2014/20140528-hano-to-transition-to-localcontrol/ (“Prior to administrative receivership, HUD, the City of New Orleans, and HANO implemented
several reforms and oversight strategies which failed to improve operations at HANO. HANO spent decades
in serious default. HANO struggled to obligate grants including millions of dollars in HOPE VI grants, or
implement proper procurement to revitalize its aging and obsolete public housing stock. HANO was
deficient in other operational areas, such excessive vacant unit turnover time (200 days), over four times
the satisfactory number of days.”).
61 See McGowan v. U.S. Dept. of Housing & Urban Dev., No. 08-5241, 2009 WL 10203277 (E.D. La.
12/31/09).
62 42 U.S.C. § 1437d(j)(3)(D)(1)(V).
63 Id.
64 HUD Returns Housing Authority of New Orleans to Local Control, NOLA.GOV (May 28, 2014),
http://www.nola.gov/mayor/press-releases/2014/20140528-hano-to-transition-to-local-control/.
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instrumentality of the state for the purposes of Article X of the Louisiana Constitution and
that HANO would remain exempt from state civil service requirements. 65
The Defendants argue that the amendment to section 40:539(C)(8)(b) is clear and
unambiguous and that Louisiana courts have already held the statute is constitutional
under the Louisiana Constitution.66 In support of their position, the Defendants reference
two cases. The first, McGowan, was decided in 2009—when HANO remained under
federal receivership—and held the Secretary of HUD had express congressional authority
to preempt state laws and exempt HANO from the state’s civil service requirements.67
This is not the issue now before this Court. In this case, the Plaintiff is seeking a
declaration that section 40:539(C)(8)(b), enacted in 2013 in anticipation of HANO
returning to local control, is unconstitutional under Article X of the Louisiana
Constitution. The Defendants also rely on Garcia v. HANO, which was decided in 2009,
and which affirmed the Civil Service Commission’s dismissal of a HANO employee’s
appeal of termination. 68 The Louisiana First Circuit recognized that HANO’s exemption
from state civil service requirements while under HUD control was authorized by
Congress. 69 Otherwise, the Court held that the employee’s claims were dismissed because
her appeal to the civil service commission based on sex and race discrimination, claims
for which HANO employees still enjoyed civil service protection, were first raised on her
appeal to the First Circuit, when the claims should have been raised before the
Commission. 70 Again, the Garcia case does not reach the issue in the instant matter—

2013 La. Act 75.
R. Doc. 18 at 7–8.
67 McGowan, 2009 WL 10203277.
68 Garcia v. Hous. Auth. of New Orleans, No. 09-1058, 2009 WL 4981281 (La. App. 1 Cir. 12/23/09).
69 Id.
70 Id.
65

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whether the legislative amendment that allows HANO to remain exempt from state civil
service requirements after the entity returned to local control is constitutional under
Article X of the Louisiana Constitution.
The Defendants fail to show that the constitutionality of section 40:539(C)(8)(b)
is a clear and settled issue of Louisiana law. The constitutionality of the 2013 amendment
to section 40:539(C)(8)(b) has yet to be decided by a Louisiana court. As such, the
constitutionality of section 40:539(C)(8)(b), which exempts HANO from state civil
service requirements, is an unsettled issue of state law. This case turns on the
determination of the constitutionality of a Louisiana statute under the Louisiana
Constitution, and resolution of this question of state law may eliminate any need for
federal constitutional adjudication. Pullman abstention is therefore appropriate. Where
Pullman abstention is appropriate, the district court retains jurisdiction over the federal
claims until a resolution of the state law issues in state court. 71 Accordingly, Plaintiff’s
Motion to Remand is granted in part. Plaintiff’s state-law claims are remanded and
Plaintiff’s federal-law claims under 42 U.S.C. §§ 1983, 1985, and 1985 are stayed pending
the resolution of the state-law claims.
CONCLUSION
IT IS ORDERED that the Plaintiff’s Motion to Remand is GRANTED IN PART.
IT IS FURTHER ORDERED that the Clerk of Court mark this action closed for
statistical purposes.
IT IS FURTHER ORDERED that the Court shall retain jurisdiction over the
Plaintiffs’ claims arising under federal law and that the case shall be restored to the trial

71

England v. La. State Bd. of Med. Exam’rs, 375 U.S. 411 (1964).

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docket upon motion of a party if circumstances change, so that it may proceed to final
disposition; this order shall not prejudice the rights of the parties to this litigation.
New Orleans, Louisiana, this 19th day of September, 2016.
________________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

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