Nasuti v. Scannell, 85-1820

• Citation: 792 F.2d 264
• Decision Date: 04 June 1986
• Docket Number: No. 85-1820,85-1820
• Parties: Nicholas NASUTI, Plaintiff, Appellee, v. James SCANNELL, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 264

792 F.2d 264

Nicholas NASUTI, Plaintiff, Appellee, v. James SCANNELL, Defendant, Appellant.

No. 85-1820.

United States Court of Appeals First Circuit.

Argued March 7, 1986.

Decided June 4, 1986.

Brent O. Hatch with whom William Kanter, Richard K. Willard, Asst. Atty. Gen., Washington, D.C., and William F. Weld U.S. Atty., Boston, Mass., were on brief, for defendant, appellant.

Burton A. Nadler with whom Petrucelly & Nadler, P.C., Boston, Mass., was on brief, for plaintiff, appellee.

Before CAMPBELL, Chief Judge, TORRUELLA, Circuit Judge, and PETTINE, ^* Senior District Judge.

LEVIN H. CAMPBELL, Chief Judge.

The question before us is whether this court is empowered to review a district court's order remanding part of a case that had been removed from a state court pursuant to the Federal Drivers Act. We conclude that, under the present circumstances, we are not so empowered. Accordingly, we dismiss the appeal and deny the petition for writ of mandamus.

I.

The Federal Drivers Act, 28 U.S.C. Sec. 2679(b)-(e) (1982), has the effect of immunizing federal employees from claims against them personally arising out of motor vehicle accidents occurring within the scope of their employment. ¹ Under the Act, the exclusive remedy for property damage, personal injury or death resulting from the operation of a motor vehicle by a federal government employee "while acting within the scope of his office or employment" (emphasis added) is an action against the United States in federal court under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b), 2671 et seq. (1982). If such a federal employee is sued in a state court, the action is removable to the United States district court upon certification by the Attorney General that the employee "was acting within the scope of his employment at the time of the accident out of which the suit arose." 28 U.S.C. Sec. 2679(d) (1982). Upon removal, the suit is deemed one against the United States rather than against the individual. Should, however, the district court determine upon motion before trial that the removed case is one in which there does not exist a Federal Tort Claims Act remedy against the United States, the case must be remanded to the state court. 28 U.S.C. Sec. 2679(d).

In the present case, plaintiff-appellee Nicholas Nasuti, a janitorial employee of the National Park Service in Massachusetts, sustained back injuries while riding in the back of a pickup truck driven during working hours by a fellow employee, defendant-appellant James Scannell. Nasuti filed a personal negligence action against Scannell in Massachusetts Superior Court. Pursuant to the Federal Drivers Act, the Attorney General certified that the defendant, Scannell, was acting within the scope of his employment as a federal driver when the injuries to Nasuti occurred, and removed the case to the United States District Court for the District of Massachusetts. Once in the district court, the United States moved to dismiss, on the ground that the plaintiff, Nasuti, being himself a federal employee, was restricted to the compensation remedy against the United States provided by the Federal Employees' Compensation Act, 5 U.S.C. Sec. 8116(c) (1982). ² At this juncture, Nasuti amended his complaint to include claims of assault and battery, torts not cognizable under the Federal Tort Claims Act. 28 U.S.C. Sec. 2680(h) (1982).

The district court dismissed the negligence action, as requested by the government. However, it remanded to the Massachusetts state court plaintiff's new claim alleging reckless and intentional acts committed by defendant. Upon motion of the United States, the district court stayed execution of its remand order, and referred that issue to a magistrate. After a hearing, the magistrate found that Nasuti had alleged facts sufficient to make out a claim for assault and battery under Massachusetts law. He also concluded that, under Miller v. Federated Department Stores, 364 Mass. 340, 304 N.E.2d 573 (1973), if such an assault and battery occurred, it was necessarily outside the scope of Scannell's employment. ³ Since the United States is only liable for torts committed by federal drivers in the scope of their employment, the magistrate held that the assault and battery claim was "one in which a remedy by suit ... is not available against the United States." 28 U.S.C. Sec. 2679(d). Accordingly, he recommended that the stay be vacated and the claim for assault and battery be remanded to the state court. Following the magistrate's recommendation, the district court remanded that claim.

Scannell, represented by attorneys for the United States, filed the instant appeal, which he denominates both as an appeal and a petition for writ of mandamus, seeking to have us overturn the district court's order. He maintains that the district court failed to follow the dictates of section 2679 when it went no further than to decide that, if the alleged assault and battery were committed, it must necessarily have been outside the scope of employment. He contends that the court was required to determine specifically whether Scannell's activities were or were not within the scope of his employment, even though to do so would involve deciding whether, under state law, an assault and battery had actually occurred.

II.

Even supposing that Scannell's arguments have merit (a question that we do not decide), we would be barred from reaching them. It is well established that as a general matter, remand orders are not reviewable. This rule is stated in 28 U.S.C. Sec. 1447 (1982), which provides, in pertinent part, as follows:

(a) In any case removed from a State court, the district court may issue all necessary orders and process to bring before it all proper parties whether served by process issued by the State court or otherwise.

....

(c) If at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case ....

(d) An order remanding a case to the State court from which it is removed is not reviewable on appeal or otherwise ....

In Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), the Supreme Court indicated that the bar on review in section 1447(d) applies only to remand orders "issued under Sec. 1447(c) and invoking the grounds specified therein--that removal was improvident and without jurisdiction[.]" Id. at 346, 96 S.Ct. at 590. Scannell contends that the remand order in the present case was made pursuant to the specific removal and remand provisions in the Federal Drivers Act, 28 U.S.C. Sec. 2679(d), and not pursuant to section 1447(c); therefore, he claims, the bar on review contained in section 1447(d) does not apply. He concludes that since there is no provision within the terms of the Federal Drivers Act itself barring review, review of the district court order should be available, either by appeal or mandamus.

But even apart from the bar on review in section 1447(d), we question whether Scannell would have a right to appeal from the district court's order: ordinarily, an order remanding a case to the state court is considered interlocutory, and does not fall within this court's appellate jurisdiction over the final orders of district courts. See United States v. Rice, 327 U.S. 742, 748, 66 S.Ct. 835, 837, 90 L.Ed. 982 (1948); Railroad Co. v. Wiswall, 90 U.S. (23 Wall.) 507, 508, 23 L.Ed. 103 (1874).

Further, we believe that section 1447 is, in fact, applicable here and that the bar in clause (d) expressly prohibits our review of the district court's order. Section 1447 refers to "any case removed from a State court" (emphasis added), and does not by its terms limit itself to cases removed under provisions currently codified in the general removal statute, 28 U.S.C. Secs. 1441-1452 (1982). The section has historically been construed broadly as applying to all cases removed from the state courts. See, e.g., Employers Corp. v. Bryant, 299 U.S. 374, 381, 57 S.Ct. 273, 276-77, 81 L.Ed. 289 (1937); Morey v. Lockhart, 123 U.S. 56, 58, 8 S.Ct. 65, 66, 31 L.Ed. 68 (1887). This point was emphasized in United States v. Rice, 327 U.S. 742, 66 S.Ct. 835, 90 L.Ed. 982 (1946), in which the Supreme Court considered and rejected an argument quite similar to that made by Scannell in the present case.

In Rice, the United States had removed an action from state court pursuant to specific statutory authorization in section 3 of the Act of April 12, 1926, ch. 115, 44 Stat. 239. ⁴ The district court subsequently remanded the case to the state court. The United States petitioned for a writ of mandamus seeking to vacate the remand order. The Tenth Circuit certified the question to the Supreme Court, asking whether the judgment of remand was reviewable by mandamus.

The pivotal issue in resolving the question was essentially the same issue before us here: whether the general remand provisions of the Act of 1887, a predecessor to section 1447, applied when removal was effected under a completely separate statute. If so, then review of the remand order was barred by the predecessor to section 1447(d). After considering the legislative history of the general remand provision, the Court concluded that the mere fact that the 1926 Act contained specific removal provisions did not, without more, place review of an order of remand in a case involving that statute "on any different footing" than if the order had been explicitly issued pursuant to the general remand provision. Rice, 327 U.S. at 749, 66 S.Ct. at 838. The bar against review, stated the Court, was "intended to be applicable not only to remand orders made in suits removed under the Act of 1887, but to orders of remand made in cases removed under any other statutes, as well." Id. at 752, 66 S.Ct. at 839. The Court emphasized that the general statute "explicitly withdrew the right of appeal and writ of error ... in all cases...