Robert W. Barker v. EDWARD BOETTCHER and BEVERLY BOETTCHER

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 24-3252
R OBERT W. BARKER ,
Plaintiff-Appellee,
and
U NITED S TATES OF A MERICA,
Appellee,
v.
EDWARD BOETTCHER and BEVERLY BOETTCHER ,
Defendants-Appellants.
____________________
Appeal from the United States District Court for
the Central District of Illinois.
No. 2:22-cv-02166-CSB-EIL — Colin S. Bruce, Judge.
____________________
S UBMITTED JANUARY 13, 2026 — DECIDED A PRIL 2, 2026
____________________
Before BRENNAN , Chief Judge, and S CUDDER , and
M ALDONADO, Circuit Judges.
S CUDDER , Circuit Judge. Before us are two questions from a
narrow corner of the law of federal jurisdiction. The questions

-- 1 of 9 --

2 No. 24-3252
relate to the scope of our authority under 28 U.S.C. § 1447(d)
to review an order remanding part (but not all) of a case to
state court following the removal to federal court of a differ-
ent part (an ancillary matter involving a challenge to subpoe-
nas served on federal employees) under the so-called federal
officer removal statute, 28 U.S.C. § 1442. Because these ques-
tions rarely arise, we take this opportunity to discuss and
highlight them in the wake of the Supreme Court’s recent de-
cision in BP P.L.C. v. Mayor & City Council of Baltimore, 593 U.S.
230 (2021). In doing so, we affirm the district court’s careful
and correct rulings on these issues.
I
The underlying dispute is straightforward and helps
frame the jurisdictional questions.
Robert Barker sued his neighbors, Edward and Beverly
Boettcher, in Illinois state court over a property-line dispute
relating to land in Champaign County. Mr. Barker sought
quiet title to land upon which he claimed the Boettchers had
built a garage. The Boettchers counterclaimed, asserting ad-
verse possession to the same property and disputing the
property lines. During the litigation, the Boettchers served
two employees of the United States Department of Agricul-
ture with subpoenas seeking farm-acreage documents relat-
ing to Mr. Barker’s property. (The Department surveys farm-
ing properties that receive certain federal benefits.) The sub-
poenas also commanded the employees’ attendance at a hear-
ing in state court.
The Department responded by informing the Boettchers
that the employees would not comply because the subpoenas
failed to respect the requirements imposed by federal

-- 2 of 9 --

No. 24-3252 3
regulations. See United States ex rel. Touhy v. Ragen, 340 U.S.
462, 468 (1951). When the Boettchers refused to withdraw the
subpoenas, the Department removed the subpoena
proceeding—just that proceeding, not the broader state court
case—to federal court pursuant to 28 U.S.C. § 1442(a)(1). That
provision, commonly called the federal officer removal
statute, allows what its name implies: federal officials to
remove a proceeding to federal court if it implicates their
official duties. See id. § 1442(a)(1); see also Willingham v.
Morgan, 395 U.S. 402, 405–07 (1969) (explaining the
background of § 1442).
For their part, the Boettchers reacted by seeking to remove
the entirety of the state case to federal court. They did so by
invoking the general removal statute, 28 U.S.C. § 1441(a), and
contending that jurisdiction was proper in federal court be-
cause the case presented questions of federal law, see 28
U.S.C. § 1331. Federal questions were present, they thought,
because the property lines at issue were first set by “acts of
Congress”: a federal land ordinance from 1785, federal sur-
veys from the 1800s, and a deed from the federal government
to the property’s first private owner in 1851. The Boettchers
also invoked § 1442, seeming to believe that the Department
of Agriculture’s removal meant that the whole case, not just
the subpoena proceeding, belonged in federal court.
Mr. Barker disagreed on the propriety of federal jurisdic-
tion, as he saw the property line dispute as requiring only the
application of Illinois law. So he filed a motion to remand the
entire case to where it started—state court.
The district court saw the jurisdictional questions with
great clarity and entered an order retaining jurisdiction over
the subpoena proceeding but remanding the property dispute

-- 3 of 9 --

4 No. 24-3252
to the state court. The district court subsequently entered
summary judgment for the Department of Agriculture and
quashed the subpoenas the Boettchers issued.
II
We begin, as we must, with our own jurisdiction.
A
Appellate review of a remand order is rare. Indeed, the
norm comes from 28 U.S.C. § 1447(d): “An order remanding
a case to the State court from which it was removed is not re-
viewable on appeal or otherwise.” But the tail end of that
same provision contains a limited exception in which Con-
gress expressly provided that “an order remanding a case to
the State court from which it was removed pursuant to section
1442 or 1443 of this title shall be reviewable by appeal or oth-
erwise.” Id. Section 1442 is the federal officer removal statute
the Department of Agriculture invoked to remove the sub-
poena matter to federal court. (Section 1443 is a reference to
particular civil rights cases.)
We have interpreted the appellate review exception in
§ 1447(d) at least once before. Most relevant here is our deci-
sion in Lu Junhong v. Boeing Co., where we explained that the
review Congress authorized in § 1447(d) extends to the en-
tirety of the district court’s remand “order”—“[n]ot [only]
particular reasons for an order, but the order itself.” 792 F.3d
805, 812 (7th Cir. 2015).
The Supreme Court later agreed with our interpretation.
In BP P.L.C. v. Mayor & City Council of Baltimore, the Court
likewise seized on Congress’s use of the word “order” in
§ 1447(d)’s reviewability exception and concluded that the
district court’s entire remand order is reviewable—not just

-- 4 of 9 --

No. 24-3252 5
the reasons why removal was improper under the federal of-
ficer removal statute. See 593 U.S. at 237–38.
We can distill all of this in more practical terms. If a de-
fendant removes a case based solely on federal question juris-
diction, the general rule of § 1447(d) precludes review of a re-
mand order. But if the defendant invokes both federal ques-
tion (or some other source) and federal officer jurisdiction or
the civil rights grounds in § 1443 as the grounds for removal,
we may review the entirety of the remand order—in other
words, all grounds invoked by the defendant to demonstrate
federal jurisdiction. See id.
These principles apply with clarity here. Because the
Boettchers invoked federal officer jurisdiction in their notice
of removal, we have the authority to review the district
court’s determination that neither federal officer jurisdiction
nor federal question jurisdiction existed over the entire prop-
erty dispute. See id.
B
Mr. Barker also seems to attack our appellate jurisdiction
from a different angle. He observes that several months after
the district court issued its partial remand order (but another
several months before it entered final judgment) the Boettch-
ers attempted to appeal the remand order. The parties briefed
the appeal as if the remand order was an interlocutory ruling.
We dismissed that appeal as untimely—coming too late for
any pursuit of an interlocutory appeal. But in no way did we
somehow preclude the Boettchers from appealing upon entry
of a final judgment in the district court.
Here, too, it helps to return to basic jurisdictional princi-
ples. The law generally does not require litigants to challenge

-- 5 of 9 --

6 No. 24-3252
an interlocutory ruling because the same ruling in time will
merge with the final judgment. See, e.g., Sargeant v. Barfield,
87 F.4th 358, 362 (7th Cir. 2023). Although the Boettchers did
challenge the remand order, our dismissal of that appeal as
untimely was necessarily without prejudice. See, e.g., Semtek
Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 505–06 (2001).
Dismissals without prejudice have no preclusive effect, id., so
the first appeal has no impact on the current, timely post-
judgment appeal.
III
With our appellate jurisdiction secure, we turn to the
Boettchers’ principal arguments and readily affirm the district
court’s rulings.
A
The district court committed no error in retaining jurisdic-
tion over the subpoena proceeding but not over the broader
property dispute between Mr. Barker and the Boettchers.
The Department of Agriculture’s selective removal of the
subpoena proceeding was sound—indeed expressly author-
ized by the federal officer removal statute. See 28 U.S.C.
§ 1442(a), (d). The Boettchers believe, however, that the De-
partment’s removal of the subpoena proceeding opened the
door to their own removal of the property dispute. We cannot
agree.
Returning to the language of § 1442(d), we see that Con-
gress added language allowing federal officers to remove
“ancillary” proceedings—such as those seeking “a subpoena
for testimony or documents”—while leaving the rest of the
underlying case in state court. Id. § 1442(d)(1). The statute
leaves no doubt about Congress’s intent: “If removal is sought

-- 6 of 9 --

No. 24-3252 7
for [such] a proceeding … and there is no other basis for re-
moval, only that proceeding may be removed to the district
court.” Id. (emphasis added). And, as we have explained, “[i]f
‘only’ some portion of a proceeding is removable” under
§ 1442, “then that necessarily implies that other portions of
that proceeding are not” without an independent jurisdic-
tional justification. Hammer v. United States Dep’t of Health &
Hum. Servs., 905 F.3d 517, 528 (7th Cir. 2018) (quoting id.
§ 1442(d)(1)).
The subpoena proceeding in this case plainly fit the re-
quirements for jurisdiction under § 1442, so we give full effect
to Congress’s language—the Department’s limited removal
did not open the door to the Boettchers’ more expansive re-
moval.
Nor did the district court commit error by remanding the
property dispute to state court. Because § 1442(d) permitted
the Department to remove only the subpoena proceeding, the
Boettchers needed a different federal hook to put the property
dispute in federal court. That requirement comes from
§ 1447(c), which demands that district courts be vigilant in as-
suring themselves of subject matter jurisdiction after any at-
tempted removal.
In one final attempt at obtaining federal jurisdiction over
the property dispute, the Boettchers point to § 1331, the stat-
ute giving district courts jurisdiction over actions arising un-
der federal law. They see their dispute with Mr. Barker as rais-
ing a federal question because the federal government was
the first to define the property lines and created the original
property deed. Even if the Boettchers are right on the facts,
they fall short on the jurisdictional front.

-- 7 of 9 --

8 No. 24-3252
Federal courts have long rejected the idea that property
disputes “present[] a Federal question merely because one of
the parties to it has derived his title under an act of Congress.”
Shulthis v. McDougal, 225 U.S. 561, 570 (1912); see also
Hilgeford v. Peoples Bank, 776 F.2d 176, 178–79 (7th Cir. 1985)
(collecting cases). Something more, such as a challenge to the
federal government’s original conveyance of the property,
would be required for federal courts to exercise jurisdiction.
See Hilgeford, 776 F.2d at 179.
B
We close with the Boettchers’ challenge to the district
court’s summary judgment order quashing the subpoenas is-
sued to the two Department of Agriculture employees.
When a case is removed from state court, the federal court
assumes a “purely derivative form of jurisdiction” and as-
sumes no more power than the state court itself had. Arizona
v. Manypenny, 451 U.S. 232, 242 (1981). When a federal
agency’s officials are subpoenaed, this principal of “deriva-
tive jurisdiction” often intersects with the doctrine that
courts—state and federal alike—lack jurisdiction to compel
federal officials to comply with a subpoena that is contrary to
a valid agency regulation. Edwards v. United States Dep’t of
Just., 43 F.3d 312, 316–17 (7th Cir. 1994) (citing Touhy, 340 U.S.
at 468). Put more simply, “if the state court lacks the jurisdic-
tion to enforce [] subpoenas, the district court will be in no
better position than the state court in enforcing the subpoenas
once the case is removed.” Id. at 316. The law is equally clear
that, in these circumstances, district courts must dismiss the
proceeding for a lack of jurisdiction by quashing the subpoe-
nas. See id. The proper procedural vehicle to do so is through
a motion under Federal Rule of Civil Procedure 12 and not a

-- 8 of 9 --

No. 24-3252 9
traditional motion for summary judgment under Rule 56. See
Mack v. Resurgent Cap. Servs., L.P., 70 F.4th 395, 402–03 (7th
Cir. 2023). But applying Rule 56 here was harmless because
the district court’s order nonetheless reached the correct and
limited result of quashing the subpoenas. See id.
On this point, the Boettchers made a critical concession in
the district court. In their response to the Department’s mo-
tion for summary judgment, they explicitly conceded that the
state court did not have jurisdiction to enforce the subpoenas.
Indeed, they renew the same concession on appeal. The dis-
trict court did not understand why the Boettchers made this
concession, and we too have struggled to understand it.
Whatever the reason, the concession is clear, as are its conse-
quences: the district court had no choice but to follow the in-
struction in Edwards by quashing the subpoenas.
In their briefs before us, the Boettchers press a range of
other arguments challenging the district court’s summary
judgment ruling. But given their concessions that the subpoe-
nas were unenforceable, we see no error in that ruling.
For these reasons, we AFFIRM.

-- 9 of 9 --