United States District Court, D. Nebraska
KATHY L. ADAMS, Plaintiff,
KATHLEEN A. LAUGHLIN, Defendant.
FINDINGS AND RECOMMENDATION
M. BAZIS UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiff's Motion to
Remand (Filing No. 7.) For the reasons set forth below, the
undersigned will recommend that the motion be denied.
22, 2018, Plaintiff filed suit against Defendant in the
District Court of Douglas County, Nebraska alleging that she
was terminated from her employment because she refused to
sign a medical records release. The Complaint asserts that
Defendant's attempt to gain access to medical records and
acquire protected health information was unlawful under the
“Nebraska Fair Employment Practice Act and the
Americans with Disabilities Act and/or made unlawful by [the
Health Insurance Portability and Accountability Act].”
(Filing No. 1.) The Complaint expressly seeks relief under
the Nebraska Fair Employment Practice Act
removed the case from the District Court of Douglas County,
Nebraska on July 20, 2018 based on federal question
jurisdiction. (Id.) Plaintiff has now moved to
remand the action to state court.
defendant may remove an action from state court to federal
court when a federal court would have had original subject
matter jurisdiction over the action. 28 U.S.C. § 1441.
“The burden of establishing that a cause of action lies
within the limited jurisdiction of the federal courts is on
the party asserting jurisdiction.” Arkansas Blue
Cross & Blue Shield of Little Rock Cardiology Clinic,
P.A., 551 F.3d 812, 816 (8th Cir. 2009).
Federal courts are to resolve all doubts as to the propriety
of exercising federal jurisdiction in favor of remand.
Dahl v. R.J. Reynolds Tobacco Co., 478 F.3d 965, 968
(8th Cir. 2007).
contends that federal jurisdiction arises under 28 U.S.C.
§ 1442(a), which “grants independent
jurisdictional grounds over cases involving federal officers
where a district court otherwise would not have
jurisdiction.” Johnson v. Showers, 747 F.2d
1228, 1229 (8th Cir. 1984) (quotation omitted).
Section 1442 permits removal to a federal forum of any civil
action against “[t]he 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.” 28 U.S.C. §
1442(a)(1). To invoke this statute, four elements must be
satisfied: (1) a defendant acted under the direction of a
federal officer; (2) there was a causal connection between
the defendant's actions and the official authority; (3)
the defendant has a colorable defense to the plaintiff's
claims; and (4) the defendant is a “person”
within the meaning of the statute. Jacks v. Meridian
Resource Co., LLC, 701 F.3d 1224, 1230
(8thCir. 2012). The Supreme Court has found that
“the statute must be liberally construed.”
Watson v. Philip Morris Cos., Inc., 551 U.S. 142,
147 (2007) (quotation omitted).
asserts that jurisdiction under §1442(a)(1) is improper
because Defendant has not shown that she acted under an
officer of the United States. The words “acting
under” are afforded liberal construction. To fulfill
the “acted under” requirement, “a private
person's actions must involve an effort to assist, or to
help carry out, the duties or tasks of the federal
superior.” Jacks, 701 F.3d at 1230 (internal
is the Chapter 13 Trustee for the District of Nebraska. The
United States Trustee appoints the Chapter 13 Trustee to
assist the United States Trustee with Chapter 13 bankruptcy
caseloads. The United States Trustee Program is a part of the
United States Department of Justice, which is an executive
agency. See 28 U.S.C. § 586(b); 48 U.S.C.
§2161; 5 U.S.C. § 101; 5 U.S.C. § 105.
Although the parties have not pointed to any Eighth Circuit
authority addressing the status of bankruptcy trustees under
§ 1442(a)(1), the Fifth Circuit Court of Appeals has
found that a Chapter 13 bankruptcy trustee is a “person
acting under” an officer of the United States for
purposes of § 1442(a)(1). See Bell v.
Thornburg, 743 F.3d 84 (5th Cir. 2014).
Bell, a former employee brought suit in state court against a
Chapter 13 bankruptcy trustee, alleging that she had been
terminated because of her race in violation of the Louisiana
Employment Discrimination Law. The trustee removed the action
to federal court under § 1442(a)(1). Finding that the
trustee was entitled to remove the case under §
1442(a)(1), the Fifth Circuit stated that trustees receive
delegated authority and “do not merely comply with the
law.” Id. at 89. Rather, trustees “both
assist and carry out the duties and tasks of their federal
superiors.” Id. Here, like in Bell, the
undersigned believes that the nature of the relationship
between Defendant and the United States Trustee is sufficient
to bring Defendant within the scope of § 1442(a)(1).
further contends that Defendant has not asserted a colorable
defense to her claims. It is well-established that a defense
does not need to be clearly sustainable to support removal
under §1442(a)(1). “For a defense to be considered
colorable, it need only be plausible; §1442(a)(1) does
not require a court to hold that a defense will be successful
before removal is appropriate.” United States v. Todd,
245 F.3d 691, 693 (8th Cir. 2001). “Because
a core purpose of the statute is to let the validity of the
federal defense be tried in federal court, a defendant
seeking removal need not virtually win his case, nor must his
defense even be clearly sustainable on the facts.”
Cuomo v. Crane Co., 771 F.3d 113, 115-16 (2d Cir.
2014) (internal quotations omitted).
argues the third element is satisfied because Plaintiff's
state law employment discrimination claim is preempted by
federal law. Defendant asserts that the Rehabilitation Act of
1973, 29 U.S.C. § 701 et seq., is the exclusive means by
which a litigant may pursue a medical inquiry retaliation
claim within a program or activity of an executive agency.
Defendant contends that unlawful medical inquiries and
retaliation for opposing such inquiries are types of
discrimination under the Rehabilitation Act. Thus, according
to Defendant, Plaintiff's state law claims are preempted.
See Shaw v. U.S. Postal Serv., No. 19 CIV 6617, 2010
WL 3749233, at *12 (S.D.N.Y. Aug. 16, 2010) (stating that
because “the Rehabilitation Act [and other applicable
federal statutes] provide the exclusive remedy for federal
employment discrimination, ” the plaintiff's state
law claims should be dismissed). See also Loos v.
Napalitano, 665 F.Supp.2d 1054, 1058 (D. Neb. 2009)
(stating that the sole remedy for a federal agency employee
seeking relief for disability discrimination was under the
has not provided any authority establishing that the
Rehabilitation Act does not preempt her state law claims and,
at this stage, Defendant need not win her case by proving her
federal defense. Thus, the undersigned finds that
Defendant's preemption defense is ...