Everbank v. Blair et al

Filing 52

OPINION AND ORDER by Judge John E Dowdell The United States of America's Motion to Dismiss (Doc. 4) is granted. The remainder of this action is remanded to the Tulsa County District Court. ; remanding case (terminates case) ; granting 4 Motion to Dismiss for Lack of Jurisdiction (Re: State Court Petition/Complaint ) (SAS, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA
EVERBANK,
Plaintiff,
v.
WILLIAM LEE BLAIR, et al.,
Defendant and
Third-Party Plaintiff
v.
BOARD OF GOVERNORS,
UNITED STATES FEDERAL BANK
RESERVE, et al.
Third-PartyDefendants.

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Case No. 14-CV-22-JED-PJC

OPINION AND ORDER
The Court has for its consideration the United States of America’s Motion to Dismiss
(Doc. 4). The government seeks dismissal of this action removed from Tulsa County District
Court based upon defects present in the third-party petition of William Lee Blair (“Blair”).
BACKGROUND
This case originated as a mortgage foreclosure action brought by Everbank against Blair
on July 30, 2013.

Rather than filing an answer to Everbank’s lawsuit, Blair filed an

“Answer/Cross Complaint and Motion for Removal” (the “third-party petition”) on November
27, 2013, asserting federal defenses and a slew of claims against Everbank and several other
defendants. His filing was construed as a notice of removal which ended up before this Court.
The Honorable Claire V. Eagan, sua sponte, remanded the case back to Tulsa County on the
basis that there was no diversity of citizenship and no federal question jurisdiction under the

well-pleaded complaint rule.

Judge Eagan reasoned that Blair’s defenses, counterclaims,

crossclaims, and/or third-party claims, though based on federal law, did not confer jurisdiction
where the plaintiff (Everbank) had alleged only state law claims. See Everbank Financial Corp.
v. Blair, et al., 13-CV-770-CVE-TLW, 2013 WL 6331676 (N.D. Okla. Dec. 5, 2013).
Following remand, Blair delivered copies of his third-party petition to third-party
defendants, the Board of Governors of the Federal Reserve System (the “Board”). The
summonses were individually addressed to third-party defendants Ben S. Bernanke, Janet L.
Yellen, Daniel K. Tarullo, Jeremy C. Stein, Jerome H. Powell, and Elizabeth A. Duke, current
and former members of the Board of Governors and employees of the Federal Reserve System
(collectively, the “federal defendants”). The United States of America then removed the action
on behalf of the federal defendants to this Court pursuant to 28 U.S.C. § 1441 and 1442(a)(1).
Blair’s 42-page third-party petition is hard to follow, but appears to allege that the federal
defendants are part of an unlawful conspiracy by virtue of the Board’s implementation of
regulations in connection with the Electronic Fund Transfer Act, 15 U.S.C. § 1693, et seq. As
part of a tenuous chain of events, Blair alleges that the EFTA and its implementing regulations
ultimately resulted in the loss of his job as a maintenance mechanic for the Tulsa Housing
Authority because he refused to be paid via direct deposit. The federal defendants now seek
dismissal of Blair’s third-party claims against them.1
DISCUSSION
The government’s notice of removal states the bases for removal as 28 U.S.C. §§ 1441(a)
(federal question jurisdiction), 1441(b) (diversity), and § 1442(a) (action against the United

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A number of other defendants seek dismissal of Blair’s numerous claims. However, for
reasons explained herein, the Court declines to exercise jurisdiction over those claims and
therefore does not address their merits.
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States). It is, however, apparent that there is no diversity of citizenship between Blair, the thirdparty plaintiff, and a number of the third-party defendants, such as Oklahoma Attorney General
Scott Pruitt, who are domiciled in Oklahoma. Removal was likewise improper under § 1441(a)
as a result of the well-pleaded complaint rule. See, e.g., Newfield Exploration, Mid-Continent,
Inc. v. Mashburn, CIV-13-1050-D, 2014 WL 494569, *2 (W.D. Okla. Feb. 6, 2014) (“third-party
defendants, counterclaim defendants, and additional counter-defendants are not ‘defendants’
within the meaning of § 1441(a) who can remove all or part of a case”). As such, § 1442(a)
appears to be the only viable avenue for removal. Section 1442(a) provides in pertinent part:
(a) A civil action . . . 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.
“Section 1442 represents an exception to the well-pleaded complaint rule in the removal
context.” 14C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3726
(4th ed.). The Board is considered an “independent regulatory agency outside of the control of
the executive branch of the Federal Government.” See, e.g., Lee Const. Co., Inc. v. Fed. Reserve
Bank of Richmond, 558 F. Supp. 165, 184 (D. Md. 1982) (citing 12 U.S.C. § 250). Blair’s thirdparty petition therefore raises claims against officers of an agency of the United States which
relate to actions performed in the course of the Board’s duties, within the meaning of § 1442, and
those claims are properly before the Court.

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The Court notes that documents filed by pro se plaintiffs are “to be liberally construed ...
and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than
formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations
omitted) (internal quotations omitted). The Tenth Circuit has noted as follows with respect to
this general rule:
We believe that this rule means that if the court can reasonably read the pleadings
to state a valid claim on which the plaintiff could prevail, it should do so despite
the plaintiff's failure to cite proper legal authority, his confusion of various legal
theories, his poor syntax and sentence construction, or his unfamiliarity with
pleading requirements. At the same time, we do not believe it is the proper
function of the district court to assume the role of advocate for the pro se litigant.
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Blair appears to be attempting to assert a Bivens claim against several current and former
members of the Board based upon what he describes as unlawful regulations promulgated by the
Board pursuant to the EFTA. Mr. Blair’s reference is to Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U.S. 388 (1971), which created an individual right of action for damages for a
Fourth Amendment violation. Since Bivens, the Supreme Court has recognized such a remedy in
only two types of cases: Eighth Amendment violations of the Cruel and Unusual Punishment
Clause, see Carlson v. Green, 446 U.S. 14 (1980), and Fifth Amendment violations of the equal
protection component of the Due Process Clause, see Davis v. Passman, 442 U.S. 228 (1979).
The Supreme Court has not, however, extended Bivens liability to any new context or new
category of defendants. See, e.g., Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001); Wilkie
v. Robbins, 551 U.S. 537, 562 (2007).
Blair’s third-party petition fails to adequately allege a Bivens action against the federal
defendants. The conduct complained of does not amount to a Fourth Amendment violation or
any other cognizable claim to which Bivens has been extended. Blair’s third-party claims against
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the federal defendants are therefore subject to dismissal to the extent they are founded upon
Bivens.
To the extent Blair alleges a claim against the Board or the federal defendants in their
official capacity, such a suit is barred by the doctrine of sovereign immunity. The United States,
its agencies, and its officers acting in their official capacity are generally shielded from suit by
the doctrine of sovereign immunity. Normandy Apartments, Ltd. v. U.S. Dep't of Hous. & Urban
Dev., 554 F.3d 1290, 1295-96 (10th Cir. 2009) (citing Wyoming v. United States, 279 F.3d 1214,
1225 (10th Cir. 2002)).

“The defense of sovereign immunity is jurisdictional in nature,

depriving courts of subject-matter jurisdiction where applicable.” Id. (citing Robbins v. U.S.
Bureau of Land Mgmt., 438 F.3d 1074, 1080 (10th Cir. 2006)). General jurisdictional statutes,
such as 28 U.S.C. § 1331, do not waive the government's sovereign immunity, and thus “a party
seeking to assert a claim against the government under such a statute must also point to a specific
waiver of immunity in order to establish jurisdiction.” Id. (citing Lonsdale v. United States, 919
F.2d 1440, 1443-44 (10th Cir. 1990)). Such a waiver must be unequivocally expressed. United
States v. Nordic Village, Inc., 503 U.S. 30, 33 (1992). And the government’s consent to be sued
is strictly construed in its favor. Id. at 34.
Blair has made no attempt to establish that any particular waiver of sovereign immunity
is applicable in this case. Nor can the Court determine that such waiver would be applicable
here. As such, Blair’s third-party claims against the federal defendants are likewise subject to
dismissal to the extent they are brought against the United States, an agency thereof, or its
officers in their official capacity. The Court cannot glean any other viable cause of action
alleged against the federal defendants from the four corners of Blair’s third-party petition. His
claims against the federal defendants are therefore dismissed.

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Having dismissed the federal defendants, the only claims remaining before the Court are
those alleged against parties which would not have been able to remove those claims to this
Court in the first instance. In such circumstances, courts generally recognize that the proper
course of action is to remand the remaining claims to state court. See, e.g., D.C. v. Merit Sys.
Prot. Bd., 762 F.2d 129, 133 (D.C. Cir. 1985) (collecting cases); Spencer v. New Orleans Levee
Bd., 737 F.2d 435, 438 (5th Cir. 1984); see also J.S.R. ex rel. Rojas Polanco v. Washington
Hosp. Ctr. Corp., 667 F. Supp. 2d 83, 85 (D.D.C. 2009) (finding as mandatory the remand of
remaining claims against non-federal defendants removed pursuant to § 1442 based upon lack of
subject matter jurisdiction once federal defendant was dismissed).
To the extent such remand is discretionary, rather than mandatory, the Court declines to
exercise jurisdiction over Blair’s remaining third-party claims and counterclaims.
IT IS THEREFORE ORDERED that the United States of America’s Motion to
Dismiss (Doc. 4) is granted. All claims alleged by Blair against defendants Board of Governors
of the Federal Reserve System, Ben S. Bernanke, Janet L. Yellen, Daniel K. Tarullo, Jeremy C.
Stein, Jerome H. Powell, and Elizabeth A. Duke are dismissed.
IT IS FURTHER ORDERED that the remainder of this action is remanded to the Tulsa
County District Court.
SO ORDERED this 17th day of July, 2014.

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