Bolinder v. Emery County et al

Filing 27

ORDER denying 11 Motion to Remand; finding as moot 18 Motion to Stay. Signed by Judge Robert J. Shelby on 12/18/2017. (jwt)

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF UTAH—CENTRAL DIVISION

LESLIE BOLINDER,
Plaintiff,

ORDER

v.
EMERY COUNTY, a political subdivision of the
State of Utah, and the EMERY COUNTY
CAREER SERVICES COUNCIL,

Case No. 2:17-CV-00371-RJS

Judge Robert J. Shelby
Defendants.

On February 1, 2017, Plaintiff filed her Petition for Judicial Review of the Emery County
Career Services Council’s decision in the Seventh Judicial District in Emery County, Utah.1
Defendants Emery County and Emery County Career Services Council (CSC) removed this
action from the Seventh District Court on May 9, 2017.2 Defendants then filed this Motion to
Remand Plaintiff’s Petition of Review of the CSC’s decision back to the Seventh District Court
arguing this court lacks jurisdiction to review state administrative agency decisions.3
For the reasons discussed below, the court concludes Plaintiff’s first cause of action—the
review of the CSC’s decision—is within its supplemental jurisdiction. The court declines to
sever and remand the claim to state court. Defendants’ Motion is denied.

1

Dkt. 2, Ex. 1 at 4–6.
Id.
3
Dkt. 11.
2

1

BACKGROUND
This action arises from the termination of Leslie Bolinder’s employment with Emery
County, Utah. She was employed by the County as an Executive Administrative Assistant.4 In
that role, Ms. Bolinder assisted the three Emery County Commissioners.5 On June 2, 2016, after
approximately 27 years of employment with the County, Ms. Bolinder was informed that her
position had been “restructured” into three part-time positions “effective immediately.”6 The
Commissioners did not hold a public meeting to discuss their decision to restructure Ms.
Bolinder’s position.7
Ms. Bolinder filed a grievance in accordance with the County’s policies and procedures.8
That grievance eventually led to a hearing before the CSC.9 On January 4, 2017, the CSC ruled
against Ms. Bolinder, finding that she “failed to meet her burden of proof in demonstrating by
substantial evidence that the Commission’s decision to reclassify her position was done
‘primarily for the purpose of dismissing or otherwise disciplining the employee.’”10
Ms. Bolinder was a career service employee.11 Accordingly, she was subject to the
provisions of the Utah County Personnel Management Act.12 On February 1, 2017 pursuant to
her rights under this Act, Ms. Bolinder filed her petition for judicial review of the CSC’s ruling
in the Seventh Judicial District Court in Emery County, Utah.13 On April 24, 2017, Ms. Bolinder
filed an Amended Complaint asserting two more causes of action in addition to her petition for

4

Dkt. 12 at 1.
Dkt. 11 at 2.
6
Dkt. 12 at 2.
7
Id.
8
Dkt. 11 at 3.
9
Id.
10
Dkt. 11-1 at 5.
11
Dkt. 11 at 2.
12
Id. at 3; Utah Code §17-33-4.
13
Dkt. 12 at 2.
5

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judicial review.14 The additional claims include a state law claim for wrongful termination in
violation of clear and substantial public policy and a federal law claim for deprivation of due
process rights in violation of 42 U.S.C. §1983.15
Defendants removed the action to this court based on Plaintiff’s due process claim.16
Defendants subsequently filed the current Motion to Remand Ms. Bolinder’s first cause of
action—that is, her petition for judicial review of the CSC’s decision.17 Plaintiff opposed
Defendant’s Motion.18
ANALYSIS
Under to 28 U.S.C. §1441(c), “(1) If a civil action includes—(A) a claim arising under
the Constitution, laws, or treaties of the United States . . . , and (B) a claim not within the original
or supplemental jurisdiction of the district court or a claim that has been made nonremovable by
statute, the entire action may be removed….”19 The statute continues, “ (2) Upon removal of an
action described in paragraph (1), the district court shall sever from the action all claims
described in paragraph (1)(B) and shall remand the severed claims to the State court from which
the action was removed.”20
Defendants contend the court must sever and remand Plaintiff’s first cause of action
because it lacks jurisdiction to hear the claim. The court finds Defendant’s argument
unpersuasive and concludes Plaintiff’s claim is within its supplemental jurisdiction.

14

Id.
Id.
16
Dkt. 2.
17
Dkt. 11.
18
Dkt. 12.
19
28 U.S.C. §1441(c).
20
Id.
15

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I.

Plaintiff’s First Cause of Action Is Within the Courts Jurisdiction
Defendants argue Utah’s statute prohibits the federal district court from exercising

jurisdiction over Plaintiff’s first cause of action. Defendants also argue this court cannot
exercise its supplemental jurisdiction over state administrative appeals. The court considers each
argument in turn.
A. Utah County Personnel Management Act
Defendants argue the Utah County Personnel Management Act prohibits this court from
exercising jurisdiction over Plaintiff’s appeal.21 Defendants assert the language of the Act
requires adverse decisions by the CSC to be appealed to the state district court. The statute
states, “a person adversely affected by a decision of the career service council may appeal the
decision to the district court.”22 Thus, Defendants argue the statute does not give the federal
district court subject matter jurisdiction to hear Plaintiff’s appeal.
This court agrees that “district court” as used in the statute refers to the state district
court.23 Defendants’ contention that such an interpretation also means this court lacks subject
matter jurisdiction, however, is without support. The plain language of the Act does not purport
to limit federal jurisdiction.24 The Act does not include language stating that federal district
courts may not hear CSC appeals, nor is there language mandating that appeals of adverse CSC
decisions are non-removable.25 Here, Plaintiff followed the very procedure Defendants argue
the statute requires—that is, she appealed the CSC’s decision to the Seventh Judicial District
Court in Emery County.

21

Dkt. 15 at 2.
Utah Code § 17-33-4 (emphasis added).
23
Id.
24
The court also notes that “[o]nly Congress may determine a lower court’s subject-matter jurisdiction.” Kontrick v.
Ryan, 540 U.S. 443, 452 (2004) (citing U.S. Const., Art. III, § 1).
25
See Utah Code § 17-33-4.
22

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The court concludes the Utah statute does limit its subject matter jurisdiction over
Plaintiff’s first cause of action.
B. Supplemental Jurisdiction Over Review of State Administrative Agency Decisions
Defendants also argue this court cannot exercise supplemental jurisdiction over state
administrative appeals. Defendants assert this court is “NOT vested…with appellate jurisdiction
over state administrative appeals.”26 Further, Defendants contend 28 U.S.C. §1367 does not vest
the court with supplemental jurisdiction to review the CSC’s ruling in Plaintiff’s case.27
The Supreme Court has instructed otherwise, explaining that state court actions involving
claims challenging the decisions of state or local agencies may be removed to federal court when
removal jurisdiction has been established.28 Once removed to federal court, the Supreme Court
clarified, “[t]here is nothing in the text of §1367(a) that indicates an exception to supplemental
jurisdiction for claims that require on-the-record review of a state or local administrative
determination.”29 Instead, the Court continued, “the statute generally confers supplemental
jurisdiction over ‘all other claims’ in the same case or controversy as a federal question.”30
In City of Chicago v. International College of Surgeons, the plaintiff brought an action in
state court including claims that local administrative actions violated federal laws and state law
claims for on-the-record review of state administrative findings, similar to Plaintiff here.31 The
defendant then removed the action to federal court.32 On appeal to the Supreme Court, the
plaintiff argued the federal district court could not exercise supplemental jurisdiction over the

26

Dkt. 15 at 3.
Id.
28
See City of Chicago v. International College of Surgeons, 522 U.S. 156, 165 (1997).
29
Id. at 169.
30
Id.
31
Id. at 160.
32
Id. at 161.
27

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review of state administrative findings.33 Ultimately, the Court concluded it was proper for the
federal court to exercise its supplemental jurisdiction over the review of the state administrative
findings.34 This court finds International College of Surgeons controlling.
Notwithstanding the holding in International College of Surgeons, Defendants cite to
several other cases for the proposition that this court cannot exercise supplemental jurisdiction
over state administrative appeals. Upon close review, the court concludes these cases, all of
which preceded the Supreme Court’s International College of Surgeons decision, do not support
Defendants’ position.35

33

Id. at 168–69.
Id. at 174.
35
In Bush v. Real Estate Comm’n, 1993 WL 523198 (10th Cir. 1993), the plaintiff attempted to recover her
Colorado real estate license. Id. at 1. She was deprived of that license following state administrative procedures, but
she failed to take advantage of the appellate remedies available to her. Id. Instead, she filed her appeal directly in
federal district court. Id. In dismissing her claim, the court stated, “It is not within the jurisdiction of federal courts
to review the administrative decisions of state agencies.” Id. But, as Ms. Bolinder argued in her Opposition to this
Motion, Bush did not involve the concurrent assertion of federal claims over which the federal district court could
have asserted original jurisdiction—and by extension, supplemental jurisdiction over the state law claims.
Furthermore, the Tenth Circuit made clear that Bush “has no precedential value and shall not be cited, or used by
any court within the Tenth Circuit.” Id. at n.1.
34

Next, in Anderson v. State of Colorado, 793 F.2d 262 (10th Cir. 1986), a father attempted to invoke federal habeas
corpus jurisdiction in what the court understood as an attempt to “undo the custody decision of a Colorado state
court.” Id. at 264. In its analysis, the court reiterated that federal district courts do not have jurisdiction to “review
final state-court judgments in judicial proceedings.” Id. at 263 (quoting District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462 (1983)). Ms. Bolinder, however, is not seeking federal review of a final state-court
judgment. While she originally appealed the CSC’s ruling to state court, Defendants chose to remove her appeal to
federal court before she could receive a state court judgment. Thus, Anderson fails to support Defendants argument
because hearing Plaintiff’s first cause of action does not require this court to engage in federal appellate review of a
state court judgment.
In Misischia v. Pirie, 60 F.3d 626 (9th Cir. 1995), the plaintiff failed the required exam for admission to practice
dentistry in Hawaii three times. Id. at 627. Members of the Dental Board reviewed his test results and upheld the
failing test scores. Id. The plaintiff could have appealed the board’s decision to the Hawaii Circuit Court, but chose
not to do so. Id. at 628. Rather, he brought an action in federal court against the board members. Id. In its analysis
the court noted, “[a] litigant cannot use supplemental jurisdiction to have a federal judge instead of a state judge
perform the judicial review of a state administrative agency decision which the state statute assigns to a state court.”
Id. at 631. That is— if a state statute assigns the appeal of a state administrative agency decision to a state court,
litigants cannot bypass that state court by using the federal district court’s supplemental jurisdiction. As Ms.
Bolinder did not attempt to bypass her appeal to the state district court, but was removed from that court to this one,
Misischia does not support Defendants assertion either.

6

II.

Exercising Supplemental Jurisdiction Over Plaintiff’s First Cause of Action is
Appropriate.
Plaintiff asserts this court has supplemental jurisdiction to adjudicate her first cause of

action. The court agrees. Once the court has “established federal jurisdiction, the relevant
inquiry respecting the accompanying state claims is whether they fall within a district court’s
supplemental jurisdiction.”36 By statute the district courts “shall have supplemental jurisdiction
over all other claims that are so related to the claims in the action within such original
jurisdiction that they form part of the same case or controversy under Article III of the United
States Constitution.”37 And “[a] claim is part of the same case or controversy if it ‘derives from
a common nucleus of operative facts.’”38
Even if jurisdiction is proper, however, pendent jurisdiction is discretionary.39 The court
must consider four factors when determining whether to decline supplemental jurisdiction: “(1)
[whether] the claim raises a novel or complex issue of State law; (2) [whether] the claim
substantially predominates over the claim or claims over which the district court has original
jurisdiction; (3) [whether] the district court has dismissed all claims over which it has original
jurisdiction; or (4) in exceptional circumstances, [whether] there are other compelling reasons for
declining jurisdiction.”40
Here, the court concludes Plaintiff’s first cause of action and the federal claim within the
court’s original jurisdiction both derive from a common nucleus of operative facts. Specifically,
the facts for both the appeal of the CSC’s decision and the 42 U.S.C. §1983 procedural and
substantive due process claim derive from the events leading up to the termination of
36

College of Surgeons, 522 U.S. at 167.
28 U.S.C. §1367(a).
38
Price v. Wolford, 608 F.3d 698, 703 (10th Cir. 2010) (quoting City of Chicago v. International College of
Surgeons, 522 U.S. 156, 165 (1997)).
39
International College of Surgeons, 522 U.S. at 172.
40
28 U.S.C. § 1367(c).
37

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Ms. Bolinder’s employment with Emery County, her actual termination, and the events that
followed her termination.
The court also concludes that none of the statutory factors weigh in favor of declining to
exercise supplemental jurisdiction over the claim at this time. This case does not raise a complex
or novel issue of state law, nor does Plaintiff’s appeal predominate over the claim over which
this court has original jurisdiction. The court has not dismissed the claim over which it has
original jurisdiction, and there are no other compelling reasons for declining jurisdiction.
Based upon the foregoing, this court concludes it is appropriate to exercise its
supplemental jurisdiction over Plaintiff’s first cause of action.
CONCLUSION
This court has supplemental jurisdiction over Plaintiff’s first cause of action under 28
U.S.C. §1367(a). Under these circumstances, the court is not compelled to sever and remand
according to 28 U.S.C. §1441(c). Accordingly, Defendant’s Motion to Remand, Dkt. 11, is
DENIED.
Because the court has so decided, Defendants’ Motion to Stay Pending Remand of Claim
for Judicial Review to the Seventh District Court, Dkt. 18, is DENIED as moot.
SO ORDERED this 18th day of December, 2017.
BY THE COURT:

__________________________
ROBERT J. SHELBY
United States District Judge

8