Brian Hammer v. United States of America

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 26, 2020 Decided February 26, 2021
No. 19-5174
BRIAN HAMMER,
APPELLANT
v.
UNITED STATES OF AMERICA,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-01113)
Anthony J. Dick, appointed by the court, argued the cause
as amicus curiae in support of appellant. On the brief was Ariel
Volpe, appointed by the court.
Brian Hammer, pro se, filed the brief for appellant.
Derek Hammond, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief was R. Craig
Lawrence, Assistant U.S. Attorney.
Before: TATEL and WILKINS, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.

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Opinion for the Court filed by Circuit Judge WILKINS.
Opinion concurring in the judgment filed by Senior Circuit
Judge RANDOLPH.
WILKINS, Circuit Judge: Appellant Brian Hammer filed a
breach of contract claim against the Government in the D.C.
Superior Court. The Government removed to the District
Court. The District Court found that the Government had only
waived sovereign immunity against Appellant’s claim in the
Court of Federal Claims, and that Appellant had already
brought his claim in the Court of Federal Claims, which had
dismissed it. So the District Court dismissed Appellant’s
claim, too. Appellant argues that under 28 U.S.C. § 1447(c),
which provides that “[i]f at any time before final judgment it
appears that the district court lacks subject matter jurisdiction,
the case shall be remanded,” the District Court should have
remanded his claim. For the reasons given below, we affirm
the District Court.
I.
In 2015, a federal magistrate judge appointed the Federal
Public Defender for the Eastern District of California to
represent Appellant after he failed to pay restitution for
multiple convictions of mail and wire fraud. See Hammer v.
Fed. Pub. Def. Org. of the E. Dist. of Cal., No. 3:16-cv-02192,
2017 WL 2692937, at *1 (S.D. Cal. June 22, 2017). Later, the
Federal Defender withdrew its representation. Id. Appellant
proceeded to file several claims against the Federal Defender
for breach of contract. See id.; Complaint, Dkt. No. 1, Hammer
v. United States, No. 1:17-cv-00912 (Fed. Cl. July 3, 2017);
Hammer v. United States, No. 3:17-cv-02137, 2018 WL
6855945 (S.D. Cal. Sept. 13, 2018); Complaint, Dkt. No. 1,
Hammer v. United States, No. 1:18-cv-1606 (Fed. Cl. Jan. 10,

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2019). This appeal concerns one of those claims, which
Appellant originally filed in the Court of Federal Claims for
$37,000 in damages, and which the Court of Federal Claims
dismissed for failure to allege the existence of an enforceable
contract. See Order at 2, Hammer v. United States, No. 1:18-
cv-1606, ECF No. 12 (Fed. Cl. Jan. 10, 2019). Appellant then
filed the same claim in the D.C. Superior Court. The
Government removed the case to the District Court and moved
to dismiss for lack of subject matter jurisdiction and for failure
to state a claim upon which relief may be granted. Appellant
moved to remand the case to Superior Court under 28 U.S.C. §
1447(c).
The District Court found that it lacked subject matter
jurisdiction over Appellant’s claim because Appellant sought
over $10,000 in damages and therefore, under the Tucker Act,
could only bring his claim in the Court of Federal Claims. The
District Court also found that Appellant’s claim was foreclosed
under the doctrine of collateral estoppel, because the Court of
Federal Claims had already rejected it. The District Court
denied Appellant’s motion to remand and dismissed
Appellant’s claim.
Appellant, acting pro se, timely appealed to this Court for
review of the District Court’s order. This Court appointed a
member of the law firm Jones Day as amicus curiae on its own
motion to present arguments in favor of Appellant’s position.1
II.
1 Anthony Dick was appointed and filed briefs in support of
Appellant’s position, and appeared on Appellant’s behalf at oral
argument. The Court commends appointed counsel for work of
excellent quality and service in the best tradition of the bar.

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28 U.S.C. § 1447(c) provides that “[i]f at any time before
final judgment it appears that the district court lacks subject
matter jurisdiction [over a case removed from state court], the
case shall be remanded.”
While the “shall” in § 1447(c) is unambiguous, we must
read § 1447(c) in its context. See Roberts v. Sea-Land Services,
Inc., 566 U.S. 93, 101 (2012). That context includes 28 U.S.C.
§ 1442(a)(1), which allows the United States to remove to
federal court civil actions commenced against it in state court,
and the Tucker Act, which this Court has interpreted to confer
exclusive jurisdiction over breach of contract claims against the
United States seeking more than $10,000 in damages on the
Court of Federal Claims. See 28 U.S.C. §§ 1346(a), 1491(a);
Greenhill v. Spellings, 482 F.3d 569, 573 (D.C. Cir. 2007).
Together, 28 U.S.C. § 1442(a)(1) and the Tucker Act make
clear that § 1447(c) does not require the District Court to
remand in this case. Congress intended § 1442’s removal
provision to protect the Government from having to litigate
immunity defenses in hostile state courts. See Willingham v.
Morgan, 395 U.S. 402, 405 (1969); H. R. REP. 104-798, at 20
(1996) (noting that Congress meant § 1442 to redress its
concern over “federal agencies hav[ing] to defend themselves
in state court” by allowing “questions concerning . . . the scope
of federal immunity . . . [to] be adjudicated in federal court”).
The Supreme Court has repeatedly reminded us that the right
of removal under § 1442(a) is “absolute,” Arizona v.
Manypenny, 451 U.S. 232, 242 (1981); Willingham v. Morgan,
395 U.S. 402, 406 (1969), and “should not be frustrated by a
narrow, grudging [statutory] interpretation,” Willingham, 395
U.S. at 407. And the Court has instructed that “[o]ne of the
purposes of immunity, absolute or qualified, is to spare a
defendant not only unwarranted liability, but unwarranted
demands customarily imposed upon those defending a long

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drawn out lawsuit.” Siegert v. Gilley, 500 U.S. 226, 232 (1991).
In other words, the entitlement to immunity “is an immunity
from suit rather than a mere defense to liability.” Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985).
To require the District Court to remand Appellant’s claim
here, where the government has waived sovereign immunity
against Appellant’s claim only in the Court of Federal Claims,
and where that court has already dismissed Appellant’s claim,
would be to subject the government to lengthy and piecemeal
litigation of the kind that Congress intended 28 U.S.C. §
1442(a)(1) to allow it to avoid. Therefore, in context, we
conclude that Congress did not intend the “shall be remanded”
language in 28 U.S.C. § 1447(c) to mean that the District Court
must force the Government to spend one more ounce of
resources on the re-litigation of a case it has already won.
III.
For the foregoing reasons, we affirm the judgment of the
District Court.
So ordered.

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RANDOLPH, Senior Circuit Judge, concurring in the judgment:
I see no need to parse 28 U.S.C. § 1447(c). Appellate
courts are “constrained to disregard . . . errors not affecting
substantial rights.” United States v. Pryce, 938 F.2d 1343, 1351
(D.C. Cir. 1991) (Randolph, J., concurring). Here, the district
court purportedly erred by dismissing instead of remanding. But
the United States has not waived sovereign immunity in the
District of Columbia Superior Court, so federal law would have
required that court to dismiss. See Oral Arg. Recording at
1:18–1:55; see also Franklin-Mason v. Mabus, 742 F.3d 1051,
1054–55 (D.C. Cir. 2014). It follows that even if § 1447(c)
required a remand rather than a dismissal, the district court’s
error would be harmless. See 28 U.S.C. § 2111.

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