Dillon v. State of Miss. Military Dept., 93-7408

• Citation: 23 F.3d 915
• Decision Date: 13 June 1994
• Docket Number: No. 93-7408,93-7408
• Parties: Grace Ford DILLON, Conservator of the Person and Estate of Ronald S. Kelly, Plaintiff-Appellant, v. STATE OF MISSISSIPPI MILITARY DEPARTMENT, Army National Guard and/or Mississippi National Guard, et al., Defendants, United States of America, Defendant-Appellee. Cynthia M. HOLLOWAY, Individually and as Mother and Next Friend of the Minors Christina Marie Byrd, Candice Lynn Byrd, Plaintiff-Appellant, v. STATE OF MISSISSIPPI MILITARY DEPARTMENT, Army National Guard and/or Mississippi National Guard, et al., Defendants, United States of America, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 915

23 F.3d 915

Grace Ford DILLON, Conservator of the Person and Estate of Ronald S. Kelly, Plaintiff-Appellant, v. STATE OF MISSISSIPPI MILITARY DEPARTMENT, Army National

Guard and/or Mississippi National Guard, et al., Defendants,

United States of America, Defendant-Appellee.

Cynthia M. HOLLOWAY, Individually and as Mother and Next

Friend of the Minors Christina Marie Byrd, Candice

Lynn Byrd, Plaintiff-Appellant, v. STATE OF MISSISSIPPI MILITARY DEPARTMENT, Army National

Guard and/or Mississippi National Guard, et al., Defendants,

United States of America, Defendant-Appellee.

No. 93-7408.

United States Court of Appeals, Fifth Circuit.

June 13, 1994.

Lawrence Arcell, Barker, Boudreaux, Lamy & Foley, New Orleans, LA, for plaintiff-appellant.

Irene M. Solet, Barbara Herwig, Jacob Lewis, Dept. of Justice, Washington DC, for U.S.

Appeal from the United States District Court for the Southern District of Mississippi.

Before JOHNSON, BARKSDALE and DeMOSS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

The threshold issue is one of first impression: the scope of removal under the Westfall Act--whether, when putative employees of the United States are not the only defendants, the action is removed, as opposed to only those claims against the United States. For this appeal from, inter alia, the dismissal of the United States as a defendant, but with other defendants remaining, we conclude that we lack appellate jurisdiction, because a final judgment was not entered. Therefore, we DISMISS.

I.

During a Mississippi National Guard training exercise in 1990, one Guard member was severely injured and another killed. As a result, two tort actions were filed in state court against several individuals (the superior officers during the exercise), the State of Mississippi Military Department Army National Guard, and the Mississippi National Guard.

Pursuant to 28 U.S.C. Sec. 2679, the Attorney General of the United States certified that, at the time of the incident, the individual defendants were acting within the scope of their United States' employment. ¹ Accordingly the actions were removed to district court (and consolidated), and the United States substituted for the individuals. 28 U.S.C. Sec. 2679(d)(2), quoted in note 1, supra. The individual defendants were dismissed.

The United States moved for dismissal, contending that the action was barred by Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), clarified by and reaffirmed in United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987) (precluding government liability for torts arising out of activities incident to military service). Plaintiffs did not respond to that motion, except with a remand motion. Remand was denied on May 25, 1993, Dillon v. State, 827 F.Supp. 1258 (S.D.Miss.1993) ²; the motion to dismiss was granted approximately two weeks later, on June 9.

Plaintiffs appealed these orders; but, the district court had neither adjudicated the claims against the state defendants, nor designated the June 9 dismissal a final judgment pursuant to Fed.R.Civ.P. 54(b) (when district court so designates, permitting entry of final judgment even though disposing of less than all claims); see Kelly v. Lee's Old-Fashioned Hamburgers, Inc., 908 F.2d 1218, 1219-22 (5th Cir.1990) (en banc) (standard for Rule 54(b) designation).

II.

The United States asserts correctly that, because there was no final judgment, appellate jurisdiction is lacking. See Fed.R.Civ.P. 54(b) ³; e.g., Thompson v. Betts, 754 F.2d 1243, 1245 (5th Cir.1985) (citing 28 U.S.C. Sec. 1291) (absent Rule 54(b) designation, "a partial disposition of a multi-claim or multi-party action does not qualify as a final decision ... and is ordinarily an unappealable interlocutory order") (internal citations and quotations omitted), cited in Kelly, 908 F.2d at 1220. Ordinarily, a judgment is not final for purposes of appeal unless it "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Way v. Reliance Ins. Co., 815 F.2d 1033 (5th Cir.1987) (citing cases; internal quotation marks and citation omitted) (judgment finding defendant liable, but not awarding damages pending arbitration, was not a final order for purposes of Sec. 1291).

Most surprisingly (read amazingly), plaintiffs did not file a reply brief in response to the government's jurisdictional point. ⁴ In their original brief, they asserted that "the United States of America removed this matter, as to the individual named defendants only". (Emphasis in original.) We infer from this, and from oral argument on this point, that plaintiffs' position is as follows: only the claims against the individual defendants (for whom the United States was substituted) were removed under the Westfall Act, with the state defendants remaining in state court; therefore, the order dismissing the United States was a final, appealable order, because it adjudicated all claims as to all parties before the district court. ⁵

The scope of removal pursuant to Sec. 2679(d)(2) appears to be an issue of first impression. But, the plain language of Sec. 2679 quickly and easily disposes of the issue. The statute states that the "action or proceeding ... shall be removed". 28 U.S.C. Sec. 2679(d)(2). It does not speak of claims or federally linked defendants; it speaks of the entire action. ⁶ (Perhaps there are no cases on the scope issue because it is a non-issue.) ⁷

Along that line, our court has held that removal under the general removal statute, 28 U.S.C. Sec. 1441, and other similar statutes, removes the action. E.g., Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371, 1376 (5th Cir.1980) (Sec. 1441(d) removal is for entire action, "not merely those aspects involving discrete federal claims or parties"); accord, Nolan v. Boeing Co., 919 F.2d 1058, 1065 & n. 9 (5th Cir.1990) (citing cases) (term "action", rather than "claims", used in removal statutes, e.g. 28 U.S.C. Sec. 1441(a)(d), 28 U.S.C. Sec. 2679(d) (prior to Westfall Act amendment), indicates intent to exercise federal jurisdiction over "entire case", not merely portions of it), cert. denied, 499 U.S. 962, 111 S.Ct. 1587, 113 L.Ed.2d 651 (1991).

In support of its holding, Arango discussed similar language in other removal provisions--which have been similarly construed to require removal of the entire action. See Arango, 621 F.2d 1371, passim (citing and construing 28 U.S.C. Sec. 1442(a)(1) (removal by federal officers); 12 U.S.C. Sec. 1819(4) (removal by Federal Deposit Insurance Co.); and 28 U.S.C. Sec. 2679(d) (prior to Westfall Act amendment)); Spencer v. New Orleans Levee Bd., 737 F.2d 435, 437 (5th Cir.1984) (construing 28 U.S.C. Sec. 1442(a)(1) to mandate removal of "entire case"). For these other removal provisions, as with Sec. 1441(d), "it is the action--embracing all defendants--that is to be transferred to federal court." Arango, 621 F.2d at 1375 (emphasis in original); Nolan, 919 F.2d at 1066 ("In federal practice, the terms 'case' and 'action' refer to the same thing, i.e., the entirety of a civil proceeding....") (citing Fed.R.Civ.P. 2). ⁸

The United States' motion to dismiss was made, and granted, only on its behalf; it is axiomatic that the state defendants remain. Because there has not been a final judgment, under Rule 54(b) or otherwise, we lack jurisdiction.

III.

For the foregoing reasons, the appeal is

DISMISSED.

1 The Federal Tort Claims Act (FTCA), as amended by the Federal Employees Liability Reform and Tort Compensation Act of 1988 (the Westfall Act), 28 U.S.C. Sec. 2679 (1988), provides for removal to federal court of actions for monetary damages against federal employees, upon certification by the Attorney General that the employee was acting within the scope of his employment when the cause of action arose. In such cases, the United States is substituted for the employee. Section 2679 provides in relevant part:

(b)(1) The remedy against the United States provided by [the FTCA] for ... personal injury or death arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against the employee whose act or omission gave rise to the claim.... Any other civil action or proceeding for damages arising out of or relating to the same subject matter ... is precluded without regard to when the act or omission occurred.

(d)(2) Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a State court shall be removed without bond at any time before trial to the [appropriate federal district court]. Such action or proceeding shall be deemed to be an action or proceeding brought against the United States ... and the United States shall be substituted as the party defendant. This certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal.

2 The remand motion was based on plaintiffs' assertion that, regardless of the Attorney General's scope-of-employment certification, the individual defendants were not federal employees, or, in the alternative, were not acting within the scope of their federal employment at the time of the incident. Because jurisdiction is wanting, we do not reach this issue (or the discovery issue concerning it)...