LAUREL BEELER, Magistrate Judge.
Defendant Charles Kinney, who is an attorney representing himself, removed an attorney disciplinary action brought against him by the California Supreme Court. (Notice of Removal, ECF No. 1.
According to Mr. Kinney's notice of removal, the documents attached to it, and the documents subject to judicial notice, the narrative is as follows. On October 11, 2012, the State Bar filed a Notice of Disciplinary Charges against Mr. Kinney and Kimberly Kempton. (See State Bar's Request for Judicial Notice ("State Bar RJN"), Ex. A, ECF No. 5-2 at 1-49.
Thereafter, Mr. Kinney petitioned the California Supreme Court for review of the Review Department's decision and to stay the order involuntarily enrolling him as an inactive member of the State Bar. (See State Bar RJN, Ex. D, ECF No. 5-2 at 103-04.) The record of the State Bar Court proceeding and its disbarment recommendation was transmitted to the California Supreme Court, and a disciplinary action named "Charles Kinney on Discipline" (California Supreme Court Case Number S224289) was opened. (See id.) Mr. Kinney also filed a "Supplement" and a "Further Supplement" to his petition. (See id.) On March 25, 2015, the California Supreme Court denied Mr. Kinney's request for a stay of his involuntary enrollment as an inactive member of the State Bar. (State Bar RJN, Ex. E., ECF No. 5-2 at 105-06.)
On April 3, 2015, Mr. Kinney removed the California Supreme Court disciplinary action to this court. (Notice of Removal, ECF No. 1.) On April 20, 2015, the State Bar, as the real party in interest, filed a motion to remand the action. (Motion, ECF No. 5.) Mr. Kinney filed an opposition, and the State Bar filed a reply. (Opposition, ECF No. 10; Reply, ECF No. 11.)
In his notice of removal, Mr. Kinney asserts that the disciplinary action may be removed "under the provisions of Section 3 of the Civil Rights Act of 1866, and/or 28 U.S.C. [§§] 1331, 1343, 1443 ... and 1446." (Notice of Removal, ECF No. 1 at 2.) Of these statutes, two—section 3 of the Civil Rights Act of 1866 and 28 U.S.C. § 1443—allow for removal. 28 U.S.C. § 1446 sets forth the procedure for the removal of civil actions, but it does not provide authority for removal itself. Mr. Kinney also cites 28 U.S.C. § 1331, which provides district courts with federal-question jurisdiction, and 28 U.S.C. § 1343, which provides district courts with jurisdiction over civil actions "authorized by law to be commenced by any person" to redress Constitutional or federal civil rights violations. To the extent that Mr. Kinney asserts that those statutes provide the court with jurisdiction, the court discusses them infra in conjunction with the general removal statute, 28 U.S.C. § 1441.
Mr. Kinney asserts that this action is removable under the Civil Rights Act of 1866 and 28 U.S.C. § 1443.
As an initial matter, the court finds that Mr. Kinney's assertion of removability fails to the extent it is based on the Civil Rights Act of 1866. He quotes from the Civil Rights Act of 1866 in his opposition, but that statute has undergone several revisions. See State of Georgia v. Rachel, 384 U.S. 780, 782, 788-797, 802 (1966). The substantive and removal provisions of the Civil Rights Act of 1866 were carried forward into different sections of the Revised Statutes of 1874. Id. at 789 & n.12. Section 3 of the Civil Rights Act of 1866, which contained the removal provision that Mr. Kinney relies on, was moved into section 641 of the Revised Statutes. Id. at 789, 795-96. Later, section 641 of the Revised Statutes was modified and became the operative statute at issue, 28 U.S.C. § 1443. Id. at 786, 802.
28 U.S.C. § 1443 provides:
Mr. Kinney argues that section 1443(1) applies. A petition for removal under that section must satisfy the two-part test articulated by the United States Supreme Court in Georgia v. Rachel, 384 U.S. 780, 788-92 (1966) and City of Greenwood, Miss. v. Peacock, 384 U.S. 808, 824-28 (1966). Johnson v. Mississippi, 421 U.S. 213, 219 (1975); Patel v. Del Taco, Inc., 446 F.3d 996, 998-99 (9th Cir. 2006).
"First, it must appear that the right allegedly denied the removal petitioner arises under a federal law `providing for specific civil rights stated in terms of racial equality.'" Johnson, 421 U.S. at 219 (quoting Rachel, 384 U.S. at 792). "Claims that prosecution and conviction will violate rights under constitutional or statutory provisions of general applicability or under statutes not protecting against racial discrimination, will not suffice." Johnson, 421 U.S. at 219. "That a removal petitioner will be denied due process of law because the criminal law under which he is being prosecuted is allegedly vague or that the prosecution is assertedly a sham, corrupt, or without evidentiary basis does not, standing alone, satisfy the requirements of s 1443(1)." Id. (citing Peacock, 384 U.S. at 825).
"Second, it must appear, in accordance with the provisions of [section] 1443(1), that the removal petitioner is `denied or cannot enforce' the specified federal rights `in the courts of (the) State.'" Id. (quoting 28 U.S.C. § 1443(1)). "This provision normally requires that the `denial be manifest in a formal expression of state law,' such as a state legislative or constitutional provision, `rather than a denial first made manifest in the trial of the case.'" Id. (quoting Rachel, 384 U.S. at 799, 803) (internal citation and quotation marks omitted). "Except in the unusual case where `an equivalent basis could be shown for an equally firm prediction that the defendant would be ["]denied or cannot enforce["] the specified federal rights in the state court,' it was to be expected that the protection of federal constitutional or statutory rights could be effected in the pending state proceedings, civil or criminal." Id. at 219-20 (quoting Rachel, 384 U.S. at 804). Indeed, "[u]nder [section] 1443(1), `the vindication of the defendant's federal rights is left to the state courts except in the rare situations where it can be clearly predicted by reason of the operation of a pervasive and explicit state or federal law that those rights will inevitably be denied by the very act of bringing the defendant to trial in the state court.'" Id. at 220 (quoting Peacock, 384 U.S. at 828).
Neither part of the test is met here.
As for the first part, Mr. Kinney has not asserted, as a defense to the disciplinary action, a right that is given to him by explicit statutory enactment protecting equal
(Notice of Removal, ECF No. 1 at 2-3.) He also says that "since no new evidence was taken, and no hearing was conducted by the [California Supreme Court] prior to issuing a denial on March 25, 2015, [Mr.] Kinney was again denied the `opportunity and right' to `defend' himself." (Id. at 3.) He also says that these acts violated his First Amendment right to free speech. (Id. at 17-18.) Mr. Kinney reiterates in his opposition that he was "deprived of due process by a `defective and inadequate process.'" (Opposition, ECF No. 10 at 9.) His claim that the California Supreme Court has not allowed him to exercise "any" right guaranteed by the United States or California constitutions aside, Mr. Kinney is asserting that the disciplinary proceedings were conducted in a way that violated his First Amendment right to free speech and his Fourteenth Amendment right to due process of law. But the United States Supreme Court has made clear that "broad contentions under the First Amendment and the Due Process Clause of the Fourteenth Amendment cannot support a valid claim for removal under [section] 1443, because the guarantees of those clauses are phrased in terms of general application available to all persons or citizens, rather than in the specific language of racial equality that [section] 1443 demands." Rachel, 384 U.S. at 792.
As for the second part, Mr. Kinney has not shown that he has been denied or cannot enforce his federal and constitutional rights in the California Supreme Court. He has pointed to no state legislative or constitutional provision that prevents him from doing so, perhaps because such federal and constitutional rights may be raised before the California Supreme Court. See Hirsh v. Justices of the Supreme Court of California, 67 F.3d 708, 713 (9th Cir. 1995). And this also is not the "rare situation" where "it can be clearly predicted by reason of the operation of a pervasive and explicit state or federal law that those rights will inevitably be denied by the very act of bringing the defendant to trial in the state court." Johnson, 421 U.S. at 220 (quoting Peacock, 384 U.S. at 828).
Although he did not assert it in his notice of removal, Mr. Kinney argues in his opposition that section 1443(2) applies, too. (Opposition, ECF No. 10 at 10.) It does not. Section 1443(2) "is available only to federal officers and to persons assisting such officers in the performance of their official duties," and to state officers. Peacock, 384 U.S. at 815, 824 n. 22 (1966). Mr. Kinney is not a federal or state officer, and nothing suggests that he is a person assisting a federal officer in the performance of their official duties.
For the reasons stated above, section 1443(1) and section 1443(2) do not apply here. Removing the disciplinary action under section 1443 was improper, and the court lacks removal jurisdiction on this basis.
Although he does not explicitly cite it, Mr. Kinney also suggests that removal is proper under the general removal statute, 28 U.S.C. § 1441(a), on the ground that the court has federal-question subject-matter jurisdiction over the disciplinary action. The general removal statute, however, does not apply, and jurisdiction is lacking.
The general removal statute provides that,"[e]xcept as otherwise expressly provided by Act of Congress,
But even if the disciplinary proceeding is considered a civil action, removal still is not proper because it is not a civil action over which the district courts of the United States have original jurisdiction. There are two varieties of original jurisdiction: (1) federal-question jurisdiction in "all civil actions arising under the Constitution, laws, or treaties of the United States," 28 U.S.C. § 1331; and (2) diversity jurisdiction where the matter in controversy exceeds the sum of $75,000, and is between, inter alia, citizens of different States, or citizens of a State and citizens or subjects of a foreign state, 28 U.S.C. § 1332. The Supreme Court has interpreted section 1332(a) to require "complete diversity of citizenship"—that is, each plaintiff must be a citizen of a different state than each defendant. Caterpillar Inc. v. Lewis, 519 U.S. 61, 68 (1996); see Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). When a matter is removed on diversity grounds, complete diversity "must exist at the time the action is removed to federal court." Miller v. Grgurich, 763 F.2d 372, 373 (9th Cir. 1985).
The removing party bears the burden of establishing that the court has subject-matter jurisdiction. Ethridge v. Harbor House Rest., 861 F.2d 1389, 1393 (9th Cir. 1988). Mr. Kinney does not assert that diversity jurisdiction exists. He does, however, assert that the court has federal-question jurisdiction. But this assertion is without merit because the State Bar brought no federal claim against Mr. Kinney, nor did it omit necessary federal questions from its Notice of Disciplinary Charges. Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 63 (1987) (the "well-pleaded complaint" rule requires a federal question to be presented on the face of the plaintiff's complaint at the time of removal for federal-question jurisdiction to exist); Franchise Tax Bd. of California v. Construction Laborers Vacation Trust, 463 U.S. 1, 22 (1983) (a plaintiff may not defeat removal by omitting necessary federal questions from his or her complaint). Rather, Mr. Kinney raises federal defenses, but an actual or anticipated federal defense is not sufficient to confer jurisdiction. Franchise Tax Bd. of California, 463 U.S. at 10 (1983); Hunter v. Phillip Morris USA, 582 F.3d 1039, 1042-43 (9th Cir. 2009). Similarly, federal-question jurisdiction cannot rest upon an actual or anticipated counterclaim. Vaden v. Discover Bank, 556 U.S. 49, 60 (2009). Thus, the court lacks federal-question jurisdiction, meaning that removal under 28 U.S.C. § 1441 is not appropriate for that reason, too.
For the reasons stated above, the court concludes that this disciplinary action was not properly removed and that federal subject-matter jurisdiction is lacking. Because the court lacks jurisdiction, the court does not address the State Bar's other arguments—that the court should abstain from hearing the action under Younger v. Harris, 401 U.S. 37 (1971), and that Mr. Kinney did not timely remove the action—because those arguments presume that the court first has jurisdiction. It does not. Accordingly, the court grants the State Bar's motion and remands the action back to the California Supreme Court.
The court nonetheless must consider whether removal was proper. Removal is an independent basis for invoking federal jurisdiction, see Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979), and the court has an independent obligation to examine, sua sponte, whether federal jurisdiction exists, and thus whether removal was proper, 28 U.S.C. § 1447(c). So even if the State Bar lacks standing, the court must examine whether Mr. Kinney properly removed the action. As the court concludes below, he did not.
