No FDIC, No Federal Forum: Eleventh Circuit Reaffirms Counterclaims Cannot Support Removal and FIRREA’s 90-Day Window Runs Only for the FDIC

Introduction

In Deutsche Bank National Trust Company v. Steven Thomason, No. 24-13965 (11th Cir. Aug. 29, 2025) (per curiam) (not for publication), the Eleventh Circuit addressed a recurring removal problem in the foreclosure/ejectment context: whether a state-court defendant can manufacture federal jurisdiction by (i) invoking the Federal Deposit Insurance Corporation (FDIC) in a counterclaim under FIRREA, (ii) relying on the FDIC’s role as a receiver or its participation in related litigation, (iii) invoking civil-rights or federal-officer removal statutes, and (iv) sidestepping the 30-day removal clock in 28 U.S.C. § 1446.

The panel—Judges Newsom, Grant, and Kidd—affirmed the district court’s remand to state court and dismissed challenges to later sanctions orders for lack of appellate jurisdiction. The court held that: (1) FIRREA’s jurisdictional grant applies only when the FDIC is actually a party “in any capacity” to the removed action; (2) a defendant’s counterclaim— even one naming the FDIC—cannot serve as the basis for federal removal jurisdiction; and (3) § 1446’s 30-day removal rule controlled and was not displaced by FIRREA’s 90-day removal window, which applies only when the FDIC is the removing party. The court also confirmed that an appellant’s assertion—even a meritless one—of federal-officer or civil-rights removal grounds (§§ 1442, 1443) permits appellate review of the entire remand order under 28 U.S.C. § 1447(d) as construed by BP p.l.c. v. Mayor & City Council of Baltimore.

The case arose from a long-running dispute over a foreclosed property in Montgomery, Alabama. Deutsche Bank brought a state ejectment and declaratory action; Mr. Thomason twice attempted removal, faced remand and fee awards, and later received sanctions after a third attempted removal. On appeal, he challenged remand, recusal, and sanctions.

Summary of the Judgment

• Remand affirmed: The Eleventh Circuit held that removal was improper and untimely under 28 U.S.C. § 1446. The FDIC was not a party to the ejectment action; FIRREA did not confer jurisdiction; and a counterclaim cannot ground removal jurisdiction.
• Appellate review permitted: Even though the asserted bases under §§ 1442 and 1443 were meritless, their assertion allowed appellate review of the remand order under § 1447(d) as interpreted by BP p.l.c. v. Baltimore.
• Recusal denied: No plain error in the district judge’s failure to recuse; conclusory allegations about past affiliations were insufficient under 28 U.S.C. § 455.
• Sanctions challenges dismissed: The court lacked jurisdiction to review sanctions orders entered after the notice of appeal and not designated in that notice.

Analysis

Precedents Cited and Their Role

• Removal and original jurisdiction:
  • Hill v. BellSouth Telecommunications, Inc., 364 F.3d 1308 (11th Cir. 2004): Removal lies only if the case could have been filed in federal court originally. The court anchored its analysis in § 1331 and § 1441.
  • Castleberry v. Goldome Credit Corp., 408 F.3d 773 (11th Cir. 2005): FIRREA (§ 1819) can create federal jurisdiction where the FDIC is a party; the panel distinguished this case because the FDIC was not a party here.
• Counterclaims and removal:
  • Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743 (2019): Removal under § 1441 cannot be predicated on counterclaims. The Eleventh Circuit applied Home Depot to reject using Thomason’s counterclaim—even one naming the FDIC—as a jurisdictional hook.
• FIRREA timing and party status:
  • 12 U.S.C. § 1819(b)(2)(A)-(B): Federal jurisdiction for actions “to which the [FDIC], in any capacity, is a party.” The 90-day removal period is keyed to FDIC-initiated removal.
  • F.D.I.C. v. S & I 85-1, Ltd., 22 F.3d 1070 (11th Cir. 1994): The 90-day window runs for the FDIC as remover; it does not displace a non-FDIC party’s obligations under § 1446.
  • University of South Alabama v. American Tobacco Co., 168 F.3d 405 (11th Cir. 1999): Removal statutes are to be strictly construed; doubts favor remand. The court applied this principle to reject expansive theories of jurisdiction based on the FDIC’s tangential roles.
• Timeliness and procedure:
  • 28 U.S.C. § 1446(b)(1) and (b)(3): 30-day removal clock from service/initial pleading; a later 30-day window is triggered only by an “amended pleading, motion, order or other paper” showing removability. The panel found no such paper and deemed removal untimely.
• Appellate review of remand orders:
  • 28 U.S.C. § 1447(d) and BP p.l.c. v. Mayor & City Council of Baltimore, 141 S. Ct. 1532 (2021): When removal is premised in part on §§ 1442 or 1443, appellate courts may review the entire remand order—not just the § 1442/1443 grounds—even if those grounds fail. The court invoked BP to confirm jurisdiction to review the remand.
• Recusal:
  • 28 U.S.C. §§ 144, 455; Hamm v. Members of Bd. of Regents, 708 F.2d 647 (11th Cir. 1983) (plain error review when recusal not sought below); United States v. Berger, 375 F.3d 1223 (11th Cir. 2004) and United States v. Patti, 337 F.3d 1317 (11th Cir. 2003): Recusal requires more than conclusory assertions; the test is whether a reasonable observer would question impartiality. The court found no basis for recusal.
• Notices of appeal and sanctions:
  • Fed. R. App. P. 3(c) and 4(a); Bogle v. Orange County Bd. of County Commissioners, 162 F.3d 653 (11th Cir. 1998); Nichols v. Alabama State Bar, 815 F.3d 726 (11th Cir. 2016); McDougald v. Jenson, 786 F.2d 1465 (11th Cir. 1986): Appellate jurisdiction is limited to orders designated in a timely notice of appeal; a notice cannot reach orders entered after its filing unless followed by an amended or new notice. The panel therefore dismissed challenges to the later sanctions orders.
• Other notable citations:
  • Henson v. Ciba-Geigy Corp., 261 F.3d 1065 (11th Cir. 2001), aff’d, Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28 (2002): De novo review of removal jurisdiction.
  • City of Jacksonville v. Jacksonville Hospital Holdings, L.P., 82 F.4th 1031 (11th Cir. 2023): Subject-matter jurisdiction reviewed de novo and sua sponte if necessary.
  • Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678 (11th Cir. 2014); Timson v. Sampson, 518 F.3d 870 (11th Cir. 2008): Issues not raised prominently are abandoned on appeal.
  • Devine v. Indian River County School Board, 121 F.3d 576 (11th Cir. 1997), overruled in part on other grounds by Winkelman v. Parma City School District, 550 U.S. 516 (2007): Pro se litigants cannot represent others; relevant to appellants purporting to include Mr. Thomason’s daughters.

Legal Reasoning

1. No FDIC party, no FIRREA jurisdiction:

   The court began with first principles: federal-question jurisdiction exists when the FDIC is a party “in any capacity” (12 U.S.C. § 1819(b)(2)(A)). Here, the FDIC had never appeared in the state ejectment case. The fact that the FDIC had once removed a different, earlier federal case as IndyMac’s receiver was immaterial. Jurisdiction is case-specific; a prior or parallel case does not insert the FDIC into a later state ejectment action.

2. Counterclaims do not create removal jurisdiction:

   Thomason attempted to bootstrap jurisdiction by embedding a “counterclaim complaint” against the FDIC in his notice of removal. Home Depot forecloses this path: removal hinges on the plaintiff’s well-pleaded complaint, not on a defendant’s counterclaims. The court noted there was no indication of any third-party claim against the FDIC in state court either.

3. Timeliness under § 1446:

   The notice of removal was filed more than a year after service of the state complaint. The snapshot rule in § 1446(b)(1) requires removal within 30 days of service/initial pleading. The fallback 30-day window in § 1446(b)(3) requires receipt of an “amended pleading, motion, order, or other paper” revealing removability—none existed here. Thus the removal was untimely.

   Thomason’s reliance on FIRREA’s 90-day removal period failed because that clock applies when the FDIC itself removes. A non-FDIC defendant cannot invoke it to sidestep § 1446.

4. Joinder/necessary-party theories do not cure untimeliness:

   Arguments that the FDIC or Thomason’s daughters were “necessary” or “indispensable” parties could not salvage jurisdiction or timeliness. Even assuming joinder, the untimeliness under § 1446 would remain dispositive.

5. Appellate review of the remand order under § 1447(d):

   Although the removal relied in part on §§ 1442 and 1443 in a meritless way (federal-officer removal premised on a daughter’s military status and civil-rights removal premised on § 1981 inheritance arguments), their mere assertion allowed the Eleventh Circuit to review the entire remand order under BP p.l.c. v. Baltimore.

6. Recusal:

   With no recusal motion below, review was for plain error. Vague claims about the district judge’s past statements or affiliations with a former law partner did not meet § 455(a)’s objective test or any § 455(b) enumerated ground. No sua sponte recusal was required.

7. Sanctions appellate jurisdiction:

   The notice of appeal identified only the remand and reconsideration orders and was filed before the district court entered the later sanctions orders. Under FRAP 3 and 4, and Bogle, Nichols, and McDougald, the court lacked jurisdiction to review the later sanctions orders. Separate, timely notices were required, and counsel’s intent to appeal in his own name had to be clear, which it was not.

Impact

• FIRREA and removal practice:
  • Defendants cannot “piggyback” on FIRREA by naming the FDIC in a counterclaim or invoking its role as a receiver in a different proceeding. The FDIC must be an actual party to the specific state action being removed.
  • The FDIC’s special 90-day removal window is exclusive to the FDIC as the removing party. Non-FDIC parties remain bound by § 1446’s 30-day deadline and the “other paper” trigger.
• Counterclaims as a jurisdictional hook:
  • Home Depot’s rule remains decisive: defendants cannot create federal jurisdiction for removal by drafting federal counterclaims (even against federal entities). This is particularly instructive in foreclosure/ejectment cases, where litigants sometimes try to reframe state-law disputes as federal controversies through counterpleadings.
• Practical removal guidance:
  • Timeliness is often outcome determinative. If a case is not removable on the face of the complaint within 30 days, defendants must identify a qualifying “other paper” that newly reveals removability and remove within 30 days of that paper—speculation or self-created filings do not count.
  • Invoking §§ 1442 or 1443 can open appellate review of a remand order, but it will not transform an otherwise untimely or jurisdictionally defective removal into a viable one.
• Appellate procedure for sanctions:
  • Parties—and counsel in their individual capacity—must file a separate, timely notice of appeal specifically identifying the sanctions orders. A notice filed before an order is entered cannot reach forward to capture it.
• Recusal and preservation:
  • Recusal must be grounded in specific facts and timely raised. Conclusory allegations or generalized suspicions will not trigger § 455. Failure to seek recusal below invites plain-error review on appeal, a difficult standard to meet.
• Vexatious litigation and narrow-grounds adjudication:
  • While the district court noted an existing filing injunction against Thomason, the Eleventh Circuit affirmed on the narrow, independently sufficient ground of untimeliness. This signals that appellate courts may avoid broader issues (e.g., injunction compliance) when a simpler, dispositive procedural flaw exists.

Complex Concepts Simplified

• Removal jurisdiction:

  Removal lets a defendant move a state case to federal court, but only if the case could have started in federal court. The court checks the plaintiff’s complaint to see if it raises a federal question or meets diversity rules; a defendant’s counterclaims do not count.

• FIRREA and the FDIC:

  FIRREA gives federal courts jurisdiction over cases where the FDIC is a party (for example, as a bank’s receiver). The FDIC also has a 90-day window to remove such cases from state court. But if the FDIC is not a party in your case, you cannot use FIRREA to remove it, and you cannot extend your own removal deadline by citing FIRREA’s 90-day clock.

• The 30-day removal clock:

  Generally, you must remove within 30 days of being served. If something later happens in the case—like an amended complaint—that newly shows the case can be removed, then a new 30-day window starts, but only if that “other paper” genuinely discloses removability.

• § 1447(d) and appellate review:

  Remand orders are usually not appealable. There’s an exception: if removal was based in part on federal-officer (§ 1442) or civil-rights (§ 1443) removal, the appellate court can review the whole remand order—even if those grounds don’t ultimately work.

• Recusal:

  A judge must step aside if a reasonable person would question their impartiality or if certain specific conflicts exist. You generally must move for recusal in the trial court, stating concrete facts, not just suspicions.

• Appealing sanctions:

  To appeal sanctions, you need to file a notice of appeal after the sanctions order is entered and explicitly list that order. A prior notice aimed at a different order won’t do the job.

Conclusion

The Eleventh Circuit’s decision delivers clear, practical guidance for removal practice in cases orbiting financial-institution receiverships and post-foreclosure litigation:

• FIRREA cannot be leveraged by non-FDIC parties to create federal jurisdiction; the FDIC must be an actual party to the action being removed.
• A defendant’s counterclaim—no matter how styled—cannot serve as the basis for removal under § 1441.
• Timeliness under § 1446 is critical; without a qualifying “other paper,” late removals will be remanded.
• Asserting §§ 1442/1443 opens the door for appellate review of a remand order, but it does not cure fundamental defects in removal.
• Recusal requires substantiated, timely claims; generalized allegations will not suffice.
• Sanctions must be appealed with precision: file a new or amended notice after the sanctions order enters and specify that order.

In short, “No FDIC, no federal forum” neatly captures the core holding. The opinion reinforces strict adherence to removal statutes, discourages jurisdictional bootstrapping through counterclaims, and underscores the importance of meticulous appellate practice. Although unpublished, the ruling is a cogent roadmap for litigants and counsel navigating the intersection of FIRREA, removal timing, and foreclosure-related disputes.