“Silence Is Denial” – The Eleventh Circuit’s Clarification on § 1443 Removals and Cost-Shifting for Frivolous Second-Time Removals

1. Introduction

The decision in U.S. Bank, National Association as Legal Title Trustee v. Valeria Taveras, No. 23-13384 (11th Cir. May 9 2025), addresses a second attempt by mortgagors Valeria and Eliezer Taveras to remove a long-running Florida mortgage-foreclosure action to federal court. The district court (M.D. Fla.) remanded the matter for lack of jurisdiction and, invoking 28 U.S.C. § 1447(c), ordered the defendants to reimburse U.S. Bank’s costs and attorneys’ fees. On appeal the Eleventh Circuit:

• Affirmed the remand, holding that removal under 28 U.S.C. § 1443 was unavailable because the Taverases failed the Georgia v. Rachel two-pronged test;
• Held that a district court’s failure to discuss a proffered ground for removal operates as an “implicit denial,” thereby preserving appellate jurisdiction and supporting affirmance; and
• Upheld the fee award, emphasizing that a repeat, untimely, and legally baseless removal—especially one filed on the eve of adverse state-court action—lacks an “objectively reasonable basis.”

The ruling reinforces two practical lessons: (i) § 1443 removal remains narrowly confined to genuine, predictable deprivations of specifically enumerated federal civil-rights guarantees; and (ii) litigants who re-file meritless removals risk fee-shifting.

2. Summary of the Judgment

After defaulting on their 2006 mortgage, the Taverases spent years contesting foreclosure in state court. Their first federal removal (2019) failed for want of diversity and timeliness. In 2023—two days before a scheduled state-court summary-judgment hearing—they removed again, asserting:

1. Federal-question jurisdiction (§ 1331) via FDCPA pre-emption;
2. Diversity jurisdiction (§ 1332) under the “revival doctrine” and allegations of plaintiff’s bad faith; and
3. Civil-rights jurisdiction (§ 1443(1)) on the theory that Florida foreclosure practice systemically discriminates against minority homeowners.

The district court rejected each ground, remanded, and awarded fees. On appeal, the Eleventh Circuit examined only the § 1443 issue (the sole ground properly preserved) and the propriety of the fee award. Applying Georgia v. Rachel, it found that although the defendants invoked statutes “providing for equal civil rights,” they offered no credible, predictable basis to conclude Florida courts would deny those rights. Consequently, removal was improper; the district court’s failure expressly to address § 1443 counts as an implicit denial, and its fee award was not an abuse of discretion.

3. Analysis

3.1 Precedents Cited and Their Influence

• Georgia v. Rachel, 384 U.S. 780 (1966) – Sets the two-part test for § 1443(1): (a) the right must arise under a statute “providing for specific civil rights stated in terms of racial equality,” and (b) the defendant must show that the right will be denied or cannot be enforced in state court. The Taverases satisfied prong one but failed prong two.
• Johnson v. Mississippi, 421 U.S. 213 (1975) – Requires a “formal expression” of state law preventing enforcement of the right. No such state foreclosure policy was identified here.
• Greenwood v. Peacock, 384 U.S. 808 (1966) – Emphasizes the rarity of successful § 1443 removals; supports narrow reading adopted by the panel.
• Alabama v. Conley, 245 F.3d 1292 (11th Cir. 2001) & Schleider v. GVDB Ops., 121 F.4th 149 (11th Cir. 2024) – Establish the “implicit denial” principle: silence on a ground for removal equals rejection, an important procedural holding reaffirmed here.
• Martin v. Franklin Capital Corp., 546 U.S. 132 (2005) – Governs cost-shifting under § 1447(c): fees are proper when removal lacks an objectively reasonable basis. Applied to uphold the fee award.
• BP P.L.C. v. Mayor of Baltimore, 593 U.S. 230 (2021) – Recognizes that once a notice of removal invokes § 1443 (or § 1442), appellate courts may review the entire remand order. Enabled plenary review here.

3.2 Court’s Legal Reasoning

1. Narrow Construction of § 1443. Consistent with Rachel and Johnson, the panel demanded a showing that Florida foreclosure law itself precluded enforcement of federal civil-rights protections. Generic allegations that “state-court judges always favor banks” fell short. The mortgage contract allowed foreclosure upon default—a facially neutral regime.
2. Implicit Denial Doctrine. By not mentioning § 1443, the district court nonetheless denied it. The Eleventh Circuit treats such silence as sufficient, avoiding remands for further explanation and thereby promoting judicial efficiency.
3. Objective Unreasonableness & Gamesmanship. The panel found the second removal objectively baseless because (a) the identical arguments had already been rejected in 2019, (b) no new facts or law emerged, and (c) the removal timing (two days before hearing) suggested tactical delay.
4. Abuse-of-Discretion Review. Under Legg v. Wyeth, fee awards are overturned only when based on legal error. Because the remand was correct, the cost award stood.

3.3 Impact of the Judgment

• Reinforcement of Fee-Shifting Deterrence. Litigants considering second or serial removals must weigh the risk of paying opponents’ costs. The decision may curb strategic removals designed solely to stall state proceedings.
• Procedural Clarity on § 1443. The Eleventh Circuit reiterates that § 1443 removal is exceptional and demands a concrete, predictive showing of civil-rights denial rooted in state law or policy, not mere dissatisfaction with prior rulings.
• “Implicit Denial” Solidified. Trial courts in the Eleventh Circuit need not provide extensive analyses of every removal theory raised; silence followed by remand is sufficient and is reviewable for correctness.
• Foreclosure Litigation. Homeowners resisting foreclosure cannot rely on broad civil-rights claims absent discriminatory state enactments. Expect quicker state-court resolutions when removal attempts rely on identical, previously rejected theories.

4. Complex Concepts Simplified

• Removal & Remand. “Removal” shifts a case from state to federal court. “Remand” sends it back when federal jurisdiction is lacking.
• Diversity Jurisdiction (§ 1332). Federal courts hear suits between citizens of different states if >$75,000 is in controversy. U.S. citizens domiciled abroad (as the Taverases claimed) cannot invoke diversity.
• Federal-Question Jurisdiction (§ 1331). Exists when a complaint itself rests on federal law. Defendants cannot create it by raising a federal defense (the “well-pleaded complaint rule”).
• § 1443(1) Civil-Rights Removal. Designed during Reconstruction so that individuals could escape hostile state courts when their racial civil rights were predictably denied under state law.
• “Revival Doctrine.” A rarely used exception that permits late removal if the plaintiff’s amended pleading introduces a new basis for federal jurisdiction. Not applicable here.
• Objectively Reasonable Basis. A standard asking whether a competent lawyer, at the time of removal, could plausibly believe federal jurisdiction existed. If not, costs and fees may be imposed.

5. Conclusion

The Eleventh Circuit’s opinion in U.S. Bank v. Taveras delivers a potent signal against strategic removals lacking legitimate jurisdictional foundations. By reaffirming the strict confines of § 1443 and endorsing fee-shifting for repeat frivolous removals, the Court promotes judicial economy, deters gamesmanship, and clarifies that federal courts remain courts of limited jurisdiction. Perhaps most notably, the opinion cements the “implicit denial” doctrine: a district court’s silence on a removal ground constitutes rejection, alleviating the need for exhaustive treatment of plainly meritless theories and facilitating swift resolution of state-law controversies.