Anthony v. Runyon, 95-2633
| Decision Date | 18 April 1996 |
| Docket Number | No. 95-2633,95-2633 |
| Citation | 76 F.3d 210 |
| Parties | Linda Kendall ANTHONY and Isaiah B. Anthony, Jr., Appellants, v. Marvin RUNYON, Postmaster General; Bonnie Eldridge; Greg Tolliver; Oscar Wade; Bonnie Wilson; and the United States of America, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Appeal from the United States District Court for the Eastern District of Arkansas. George Howard, Jr., U.S.D.C. Judge.
Hugh Brown, Little Rock, AR, argued, for appellant.
Richard Pence, Asst. U.S. Atty., Little Rock, AR, argued, for appellee.
Before BEAM and MORRIS SHEPPARD ARNOLD, Circuit Judges, and JONES, * District Judge.
Linda and Isaiah Anthony appeal the order of the district court substituting the United States for the defendants named in their complaint and dismissing their case. We affirm.
Linda and Isaiah Anthony are employees of the United States Postal Service. The Anthonys sued Bonnie Wilson, Craig Tolliver, and Oscar Wade (all of them Postal Service supervisors), Bonnie Eldridge (the Postmaster for Little Rock, Arkansas), and Marvin Runyon (the United States Postmaster General) in Arkansas state court. The Anthonys claimed that Bonnie Wilson defamed them "during and in the course of her employment." (She allegedly told other postal employees that Mr. Anthony was a homosexual and that Mrs. Anthony had contracted AIDS through contact with him.) The Anthonys asserted that the other defendants were responsible for supervising Ms. Wilson.
Pursuant to the Westfall Act, 28 U.S.C. § 2679(d)(2), the defendants filed a notice of removal in federal district court. They attached a Certification of Scope of Employment (in which the U.S. Attorney certified that all of the defendants were acting within the scope of their federal employment when the allegedly injurious conduct occurred) and the sworn declarations of all of the defendants except Mr. Runyon. Three days later, the defendants and the United States filed, in the federal court, a motion to substitute the United States for the named defendants and to dismiss the complaint (hereinafter "motion to substitute and dismiss").
Four days later still, the Anthonys filed an amended complaint in the state court. The new complaint deleted all of the defendants except Bonnie Wilson and dropped the allegation that Ms. Wilson defamed the Anthonys "during and in the course of her employment." The next day, the United States filed a notice of removal in the state court. The Anthonys then filed, in the federal court, a response to the motion to substitute and dismiss. In their response, the Anthonys asserted that Ms. Wilson's defamatory remarks were not within the scope of her employment, and requested an evidentiary hearing on the scope-of-employment issue.
The district court ruled on the motion to substitute and dismiss without holding a hearing. In its order, the court refused to consider the Anthonys' amended state-court complaint because it was filed after the defendants filed the notice of removal in the federal court; the court also disregarded the new allegations in the Anthonys' response to the motion to substitute and dismiss. The court substituted the United States as party-defendant, finding that the defendants were acting within the scope of their employment when the alleged misconduct occurred. The court then dismissed the complaint for failure to state a claim because the United States is immune from defamation suits. 28 U.S.C. § 2680(h). On the same day that the order was docketed, the Anthonys submitted several affidavits to support their allegation that Ms. Wilson was not acting in the scope of her employment.
The Anthonys next filed a motion for reconsideration in the federal court. The court denied the motion.
In 1988, Congress amended the Federal Tort Claims Act ("FTCA") to reinforce federal employees' immunity from tort actions. These amendments--commonly known as the Westfall Act because they were a response to Westfall v. Erwin, 484 U.S. 292, 300, 108 S.Ct. 580, 585, 98 L.Ed.2d 619 (1988)--provide that an action against the United States is the only remedy for injuries caused by federal employees acting within the scope of their employment. 28 U.S.C. § 2679(d)(1). The Westfall Act also establishes a process frequently called Westfall certification. After a federal employee is sued in a state court, the Attorney General reviews the case to determine if the employee was acting within the scope of his or her employment when he or she engaged in the allegedly harmful conduct. 28 U.S.C. § 2679(d)(2). The Attorney General may then file a Certification of Scope of Employment, a document certifying that the employee was acting within the scope of his or her employment, and may remove the case to federal court. Id. The Attorney General then notifies the federal court that the United States should be substituted as party-defendant for the federal employee. Id.
Although Westfall certification acts as prima facie evidence that the defendants were acting within the scope of their employment, Brown v. Armstrong, 949 F.2d 1007, 1012 (8th Cir.1991), it does not conclusively establish that the United States should be substituted as party-defendant. Gutierrez de Martinez v. Lamagno, --- U.S. ----, ----, 115 S.Ct. 2227, 2236, 132 L.Ed.2d 375 (1995); Brown, 949 F.2d at 1011-12. If the plaintiff challenges the certification, the district court must independently review the case and determine whether the defendant was in fact acting within the scope of his or her employment. Gutierrez de Martinez, --- U.S. at ---- - ----, 115 S.Ct. at 2236-37 (plurality opinion). If the court finds that the employee was acting outside the scope of his or her employment, the court must refuse to substitute the United States. Id. If the court agrees with the certification, then the case proceeds against the United States under the FTCA. 28 U.S.C. § 2679(d)(4).
On appeal, the Anthonys argue that the district court erred by failing to consider the allegations contained in the amended state-court complaint and by failing to hold a hearing on the scope-of-employment issue. We discuss each of their arguments in turn.
The Anthonys first argue that the district court erroneously refused to consider their amended state-court complaint. The court ignored the new complaint because it was filed after the defendants filed a notice of removal in the federal court. The court reasoned that filing the notice of removal in the federal court effected the removal, and, therefore, that the "plaintiffs' attempt to amend their complaint in state court is without significance, and is not part of the record in this Court." The Anthonys contend, however, that the removal did not become effective until the defendants filed the notice of removal in the state court. Because the Anthonys filed their amended complaint the day before that notice of removal was filed, they argue that the district court was bound to consider it. We agree.
The Westfall Act does not set out the steps necessary to effect removal to federal court. The statute simply states that a state-court action against a federal employee acting in the scope of his or her employment "shall be removed ... at any time before trial by the Attorney General to the district court." 28 U.S.C. § 2679(d)(2). But the statute that sets forth general removal procedure, 28 U.S.C. § 1446, indicates quite specifically when removal is effected. The statute states that "[p]romptly after the filing of such notice of removal [in the federal court] ... the defendant ... shall file a copy of the notice with the clerk of [the] State court, which shall effect the removal." 28 U.S.C. § 1446(d) (emphasis added).
Despite the seeming clarity of this statute, courts have adopted three rules regarding when removal is effected. Most courts hold that removal is effected by filing a copy of the notice of removal in the state court. See 14A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3737 at 550 (1985); see also Usatorres v. Marina Mercante Nicaraguenses, 768 F.2d 1285, 1286-87 (11th Cir.1985) (per curiam ). Some courts, including the United States District Court for the Eastern District of Arkansas, have held that removal is effected simply by filing the notice of removal in the federal court. First Nat'l Bank v. Johnson & Johnson, 455 F.Supp. 361, 363 (E.D.Ark.1978). (The district court evidently followed this rule.) Finally, a few courts have held that the state and federal courts have concurrent jurisdiction until the notice of removal is filed with the state court. See 14A Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice § 3737 at 550-51. The Anthonys claim that we adopted this third approach in Metro North State Bank v. Gaskin, 34 F.3d 589 (8th Cir.1994), but we disagree with their interpretation of that case. In Metro North, we quoted Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 437, 94 S.Ct. 1113, 1123, 39 L.Ed.2d 435 (1974), for the proposition that federal, rather than state, law governs the proceedings of a case after it has been removed. Metro North, 34 F.3d at 592. The case does not discuss when removal becomes effective.
Although we have never addressed this issue (perhaps we never had occasion to do so because the statute was clear to litigants), we think that the removal statute leaves little room for creative interpretation. The only rule that logically follows from 28 U.S.C. § 1446(d) is that removal is effected when the notice of removal is filed with the state court and at no other time. Therefore, the amended complaint was properly before the district court, and we find that the district court erred in refusing to consider it.
The defendants argue that 28 U.S.C. § 1446(d) should...
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