The State of Texas v. Melton

Filing 17

ORDER GRANTING Plaintiff's 10 Motion to Remand to State Court. The Clerk shall REMAND the above-styled cause to the 201St Judicial District Court of Travis County, Texas, for further proceedings. ORDER that the removing partyDefendant Rosser B. Melton shall pay to Plaintiff the State of Texas the sum of TWO THOUSAND ONE HUNDRED DOLLARS ($ 2,100.00) as costs and attorney's fees under 28 U.S.C. § 1447(c), for which let execution issue. Signed by Judge Sam Sparks. (klw)

gii.
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS16 SEP -9 PM
AUSTIN DIVISION

J:

51

CLERK. U.S. DISTRICT COURT
WESTERN DISTRICT OF TEXAS

THE STATE OF TEXAS,

BY

Plaintiff,

£41-

CLEkR

-vs-

Case No. A-16-CA-863-SS

ROSSER B. MELTON, JR.,
Defendant.

ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and

specifically Plaintiff's Motion to Remand [#10] and Defendant's Response [#14] in opposition.
Having considered the documents, the governing law, and the case file as a whole, the Court now
enters the following opinion and orders GRANTiNG the motion.

Background
In this case, the Texas Attorney General, on behalf of the State of Texas, brings an action

against Plaintiff Rosser B. Melton, Jr. under § 200 1.202 of the Texas Government Code to enforce
a final order against Melton issued by the Texas Board of Professional Engineers (Board).

See

Mot.

Remand [#10] ¶ 2. The Board's final order, issued on November 19, 2015, assessed $3,900.00 in
administrative penalties and $359.09 in court costs against Melton for violations of the Texas

Occupations Code.

See

id.

¶

1.

Specifically, the Board found Melton, who is not a licensed

professional engineer, represented himself as a "private engineer" in an engineering type document.
See

id.

On January 12, 2016, Melton's motion for rehearing was overruled and the Board's order

became final and appealable.
by

§

See

id.

Melton failed to seek judicial review of the order as prescribed

2001.17 1 and .176 of the Texas Government Code.

See

id.

The State sued Melton in the

VI

201st Judicial District Court in Travis County, Texas, to compel Melton's compliance with the

Board's order. See id. ¶ 2.
On July 13, 2016, Melton filed a Notice of Removal [#1] in this Court. The State then filed

this Motion to Remand [#10] and Melton filed his Response [#14]. The motion is now ripe for
review.

Analysis
I.

Legal Standard
In general, a defendant may remove a civil action if a federal court would have had original

jurisdiction over one or more of the plaintiff's claims. See 28 U.S.C.

§

144 1(a). District courts have

"original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United

States." 28 U.S.C.

§

1331. "The well-pleaded-complaint rule has long governed whether a case

'arises under' federal law for purposes of § 1331." Holmes Grp., Inc.

v.

Vornado Air Circulation

Sys., 535 U.S. 826, 830 (2002). Under this rule, a case "arises under" federal law if"a well-pleaded

complaint establishes either that federal law creates the cause of action or that the plaintiffs right
to relief necessarily depends on resolution of a substantial question of federal law." Franchise Tax.
Bd. of Cal. v. Constr.

Laborers Vacation Tr. for S. Cal., 463 U.S.

1,

27-28. Moreover, the federal

question "must be disclosed upon the face of the complaint, unaided by the answer.

.. ."

Gully v.

First Nat'l Bank, 299 U.S. 109, 112 (1936). "[T]he complaint itself will not avail as a basis of
jurisdiction in so far as it goes beyond a statement of the plaintiffs cause of action and anticipates
or replies to a probable defense." Id. at 113. The corollary is that a federal defense alone is not a

basis for federal jurisdiction. Rivet v. Regions Bank ofLa., 522 U.S. 470, 475 (1998).

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II.

Application
The State claims this Court does not have federal question jurisdiction under 15 U.S.C.

§

1331. See Mot. Remand [#101 ¶ 4. Further, because Melton lacked "an objectively reasonable

basis for seeking removal," the State argues it is entitled to "just costs and

. . .

including attorney fees, incurred as a result of the removal" under 28 U.S.C.

§

A.

actual expenses,

1447(c). See id.

Removal

The Court first looks to the State's complaint to determine whether "federal law creates the

cause of action or.

. .

the plaintiff's right to relief necessarily depends on resolution of a substantial

question of federal law." Franchise Tax. Bd. of Cal., 463 U.S. at 27-28. The State's single cause

of action arises under § 2001 .202(a)(2) of the Texas Government Code, which allows "[t]he attorney
general, on the request of a state agency to which it appears that a person

to comply with a final order[, to] bring an action in a district court.

the final order.

. .

. .

is. . . failing or refusing

to compel compliance with

." No element of this claim arises under federal law.

Further, the State's right to relief does not depend on the resolution of a substantial question

of law. Melton argues the "state licensing boards as presently constituted are essentially illegal under
[the U.S. Supreme Court's decision in North Carolina Board ofDental Examiners v. FTC, 135 5.
Ct. 1101(2015)], so that actions

ofboards are federal law violations, and surely there's a substantial,

disputed federal question here!" Resp. [#14] at 3. The Board of Dental Examiners involved an
Federal Trade Commission (FTC) action against the North Carolina State Board of Dental
Examiners (North Carolina Board). 135 S. Ct. at 1107-09. Because the majority of the members

of the North Carolina Board were licensed, practicing dentists, the FTC alleged its regulation of the
practice of dentistry constituted "an anticompetitive and unfair method of competition." Id. at 1109
-3-

The North Carolina Board claimed they were entitled to immunity under the Supreme Court's Parker
v.

Brown decision, which held that federal antitrust laws confer "immunity on anticompetitive

conduct by the States when acting in their sovereign capacity." Id. at 1110 (citing Parker v. Brown,
317 U.S. 341, 350-5 1 (1943)). The Court held the North Carolina Board could not invoke Parker

immunity because it did not show it was subject to active supervision by the state. Id. at 1116-17.
The Court disagrees with Melton that the Supreme Court's Board of Dental Examiners

decision rendered all state licensing boards illegal. More importantly, the holding in Board ofDental

Examiners does not introduce a substantial question of law on which the State's right to relief
depends.

Melton also asserts the State "should have gone ahead and tried to plead against [Board of

Dental Examiners] , which would have made this a fair federal question case." Notice Removal [#11

¶ 3. In light of Board ofDental Examiner's holding, it seems Melton is arguing the State's action
to enforce the final order is barred on federal antitrust grounds for which the Board cannot claim

Parker immunity. See Notice Removal [#1] ¶J1-4; Resp. [#14] at 2 ("The AG and the engineer
board are in violation of the Sherman Antitrust Act and should be barred from pleading... ."). This
argument amounts to a defense or counterclaim, neither of which can confer federal jurisdiction.
Vaden

v.

Discover Bank, 556 U.S. 49, 60 (2009) ("Federal jurisdiction cannot be predicated on an

actual or anticipated defense

. . .

[or] counterclaim.")

The Court also dismisses Melton's argument to the extent he claims federal law pre-empts the State's
claims. While "[o]n occasion, . . . the pre-emptive force of a statute is so 'extraordinary' that it 'converts an
ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint
rule," that is not the case here. Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987) (quoting Metro. Life Ins.
Co. v. Taylor, 481 U.S. 58, 65 (1987)).
1

-4-

In sum, Melton has failed to establish federal question subject matterjurisdiction. The Court

REMANDS this case to the state court.

Costs and Attorney's Fees

B.

In remanding the case, the Court "may require payment ofjust costs and any actual expenses,

including attorney fees, incurred as a result of the removal." 28 U.S.C.
circumstances, courts may award attorney's fees under

§

§

1447(c). "Absent unusual

1447(c) only where the removing party

lacked an objectively reasonable basis for seeking removal." Martin v. Franklin Capital Corp., 546
U.S. 132, 141 (2005). The Supreme Court in Martin explained, "{t]he appropriate test for awarding
fees under

§

1447(c) should recognize the desire to deter removals sought for the purpose of

prolonging litigation and imposing costs on the opposing party, while not undermining Congress'
basic decision to afford defendants a right to remove as a general matter, when the statutory criteria
are satisfied." Id. at 140.
As illustrated above, there was no objectively reasonable basis for the removal of this case.

The State's cause of action does not involve or depend upon the resolution of a federal question.

And the Supreme Court's decision in Board ofDental Examiners does not transform the State's state
law claim into a federal question. Ultimately, Melton' s argument that federal antitrust law bars the

State's action constitutes a defense or counterclaim, neither of which confers federal jurisdiction.
Thus, after considering the State's affidavit, the Court awards the State $2,100 in just costs and

attorney's fees.
The Court recognizes that Melton is proceeding pro Se. While the Court does not lightly

impose costs or sanctions at any time, it is particularly cautious when the plaintiff appears pro Se.
Here, however, the Court's award is justified even in light of Melton'spro se status. Melton failed
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to appeal the Board's order, as was his right under Sections 2001 .171 and .176 of the Texas

Government Code, and cannot now use a removal proceeding to attack the Board's final order. See

LaChance v. Talmadge, 273 F.3d 1108(5th Cir. 2001) (affirming district court's award of attorney's
fees and costs against the removing pro se party).

Conclusion
Accordingly,
IT IS ORDERED that Plaintiff the State of Texas's Motion to Remand [#10] is

GRANTED;
IT IS FURTHER ORDERED that the Clerk shall REMAND the above-styled cause

to the 201St Judicial District Court of Travis County, Texas, for further proceedings;
IT IS FTh4ALLY ORDERED, ADJUDGED, and DECREED that the removing party

Defendant Rosser B. Melton shall pay to Plaintiff the State of Texas the sum of TWO
THOUSAND ONE HUNDRED DOLLARS ($ 2,100.00) as costs and attorney's fees under
28 U.S.C. § 1447(c), for which let execution issue.

SIGNED this the

'f

day of September 2016.

SAM SPARKS J
UNITED STATES DISTRICT JUDGE