This consolidated appeal involves two separate matters initiated by August Wakat, proceeding pro se. In the first matter, Wakat purchased land from Henry and Linda Winn in Oklahoma but later defaulted on the mortgage, leading the Winns to file a foreclosure action in Wagoner County, Oklahoma state court. Wakat removed this case to federal district court, asserting he was a Special Agent of the U.S. Department of the Treasury. In a second matter, Wakat removed two criminal prosecutions against him from Houston County, Texas state court to federal court, attempting to join the Winns as parties. In both instances, Wakat relied on 28 U.S.C. § 1441(a) and 28 U.S.C. § 1442(a)(1) for removal. The district court remanded both matters, finding that Wakat failed to establish diversity or federal question jurisdiction for the civil case and that he was not a representative of the United States for the purposes of federal officer removal. The district court also awarded costs and fees to the Winns, deeming the removal efforts patently unreasonable.
The Tenth Circuit first addressed whether it had jurisdiction to review the remand orders. Under 28 U.S.C. § 1447(d), appellate review of remand orders is generally barred unless the removal was pursuant to 28 U.S.C. § 1442 or § 1443. Relying on the Supreme Court's decision in BP P.L.C. v. Mayor & City Council of Balt., the court held that a defendant sufficiently asserts removal under § 1442 if their notice of removal cites that statute, even if the assertion is frivolous. Since Wakat's notices explicitly cited § 1442(a)(1), the appellate court had jurisdiction to review the remand orders. On the merits, the court found that Wakat waived his arguments regarding diversity jurisdiction and procedural defects because he failed to raise them in his opening brief. Regarding the core issue of federal officer removal under § 1442(a)(1), the court noted that Wakat did not challenge the district court's finding that he failed to provide facts showing he was a representative of the United States. Consequently, the court affirmed the remand of the civil foreclosure action to Oklahoma state court and the criminal proceedings to Texas state court. The court also dismissed the appeal regarding costs and fees, ruling that it lacked jurisdiction because Wakat failed to file amended notices of appeal after the district court finalized the fee amounts.
The civil foreclosure and criminal cases must return to their respective state courts in Oklahoma and Texas for further proceedings. The decision reinforces that federal officer removal is strictly limited to individuals who can demonstrate they acted under color of federal office. It also clarifies that while citing § 1442 opens the door for appellate review of a remand, the appellant must still substantively challenge the district court's reasoning to succeed on the merits. Additionally, parties seeking to appeal fee awards must ensure they file notices of appeal after the fees are quantified.
Podcast (federal-narrative-summaries): Play in new window | Download