Mitchell v. Carlson
| Citation | 896 F.2d 128 |
| Decision Date | 15 March 1990 |
| Docket Number | Nos. 89-1377,89-1516 and 89-1653,s. 89-1377 |
| Parties | Queenie MITCHELL, Plaintiff-Appellee, v. Deborah CARLSON and United States of America, Defendants-Appellants. Queenie MITCHELL, Plaintiff-Appellee, v. Deborah CARLSON, Individually, Defendant-Appellant. In re UNITED STATES of America and Deborah Carlson, Petitioners. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Helen M. Eversberg, U.S. Atty., San Antonio, Tex., Scott R. McIntosh, Dept. of Justice, Barbara L. Herwig, Appellate Staff, Civil Div., Washington, D.C., for defendants-appellants.
John R. Ker, Hewitt, Tex., for plaintiff-appellee.
Appeals from the United States District Court for the Western District of Texas.
Before GARZA, WILLIAMS and DAVIS, Circuit Judges.
This appeal presents two issues: (1) whether this Court has jurisdiction to review a district court order that re-substituted parties and remanded the case to state court; and (2) whether the re-substitution order was in error under the Federal Employees Liability Reform and Tort Compensation Act of 1988, Pub.L. No. 100-694 (November 18, 1988), commonly known as the Westfall Act.
This case 1 arose out of an altercation between appellee Queenie Mitchell and appellant Major Deborah Carlson. Mitchell is a nurse assistant at Darnell Community Hospital, a federal military facility in Killeen, Texas. Carlson, Mitchell's supervisor, is a nurse-midwife there. On June 11, 1986, during a heated work-related conversation in which Carlson confronted and accused Mitchell of mishandling patients' records, Carlson allegedly struck Mitchell.
In June 1988, Mitchell sued Carlson in her individual capacity in Texas state court, claiming common law tortious assault and battery. One month later Carlson removed the case to federal court, pursuant to 28 U.S.C. Sec. 1442(a), which authorizes military personnel to remove any suit against them based on acts done under color of federal office or status. See 28 U.S.C. Sec. 1442(a).
On November 18, 1988, the Westfall Act became effective. The Act amended several provisions of the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b), 2671, et seq., in order to ensure that federal employees remain immune from liability for wrongful acts occurring in the course and scope of their employment. Section 2, Westfall Act. To further its purpose, Congress established three specific procedures in the Act. First, upon the initiation of suit against a federal employee, the employee may seek certification by the United States Attorney General that he or she acted in the scope and course of employment. Second, if the suit was filed in state court, upon certification the case shall then be removed to federal court. Finally, once the case is in federal court, the federal district court is required to substitute the United States as defendant in place of the federal employee, and the case proceeds "in the same manner as any action against the United States", i.e. as a claim under the Federal Tort Claims Act. Section 6 of the Westfall Act, amending 28 U.S.C. Sec. 2679(d).
On January 10, 1989, in accordance with the above amendments, and with the case already having been removed to federal court, the United States Attorney for the Western District of Texas certified that Carlson had acted within the scope of her employment. The United States then filed a Notice of Substitution and Application for Order with the district court. As required by the Westfall Act, on January 30, 1989, the district court entered an Order dismissing Carlson, substituting the United States as the proper defendant, and ordering the case to proceed under the FTCA.
The United States then filed a motion to dismiss the suit on the ground that the federal district court lacked subject matter jurisdiction because of Mitchell's failure to file an administrative claim with the Department of the Army as required by the FTCA, 28 U.S.C. Sec. 2675(a).
On April 6, 1989, 709 F.Supp. 767, the district court entered an Order dismissing the United States as party defendant, but not for the reasons presented in the United States' Motion to Dismiss. The court based its dismissal on its own motion pursuant to another provision of the FTCA, which expressly excludes government liability for any claim arising out of assault or battery. See 28 U.S.C. Sec. 2680(h). Since the United States government had not waived its sovereign immunity with regard to claims of assault and battery, the district court concluded that it lacked subject matter jurisdiction to hear Mitchell's case, and thus dismissed the United States. In the same order, the district court also vacated its previous Order that substituted the U.S. for Mitchell, resubstituted Carlson as defendant, and remanded the case to state court.
On Carlson's behalf, the United States removed the case from state court again, pursuant both to 28 U.S.C. Sec. 1442(a), the removal statute applicable to military personnel previously relied on by Mitchell, and 28 U.S.C. Sec. 2679(d)(2), the removal provision in the Westfall Act. The United States also requested that the district court hold any further proceedings in abeyance until this Court could review the previous order. On May 4, 1989, however, the district court once again, without further opinion, remanded the case to state court.
The United States and Carlson appeal from the two district court orders, and, in the alternative, request a writ of mandamus directing the district court judge to vacate his previous orders.
The critical issue we face in this appeal is whether we have jurisdiction to review the district court's orders. Federal law clearly precludes us from reviewing the district court's two orders for remand to the state court for lack of jurisdiction. 28 U.S.C. Sec. 1447(d); Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976); Richards v. Federated Department Stores, Inc., 812 F.2d 211 (5th Cir.1987). Section 1447(d) states:
Section 1447. Procedure after removal generally.
... (d) An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise....
28 U.S.C. Sec. 1447(d). This section applies to review by mandamus as well as appeal. Gravitt v. Southwestern Bell Telephone Co., 430 U.S. 723, 97 S.Ct. 1439, 52 L.Ed.2d 1 (1977).
Contrary to the assertions of appellant, we must hold that Westfall Act claims are subject to the limitations of this section. Section 1447(d) applies to all remands for lack of jurisdiction pursuant to Sec. 1447(c). The Westfall Act contains no provision expressly or by implication excepting it from the operations of Secs. 1447(c) or (d).
Appellants rely upon the Westfall Act's effective repeal of the provision in the FTCA, 28 U.S.C. Sec. 2679(d) (1982 & Supp. V 1987), authorizing a district court to remand a case to state court if it found that the employee acted outside the scope of employment. Appellants assert that this repealed provision is persuasive evidence that Congress intended to deny district courts the power to remand a Westfall Act case, regardless of the reason, once the Attorney General has issued certification. This contention is unpersuasive. Congress repealed the provision in order to give the new certification procedure conclusive effect on the issue of whether the employee acted within the scope of employment. There is no evidence, however, that the act of repeal implicated or affected the authority of the district court to order remand for reasons wholly unrelated to the scope certification. 2
There is no provision in the statute yielding any indication that Congress intended to deny federal courts the power to order remand for reasons other than those related to the course of employment certification, or to grant this Court the power to review, on appeal or otherwise, orders of remand for lack of jurisdiction in a Westfall Act case. We, therefore, must adhere to the broad application of Sec. 1447(d). We must conclude that we are barred by Sec. 1447(d) from reviewing on appeal or otherwise orders of remand for lack of jurisdiction in a Westfall Act case. 3
We find, however, that this Court does have appellate jurisdiction to review the portion of the district court's April 6 decision and order, separable from the remand portion, that vacated its previous order substituting the United States for Carlson and resubstituted Carlson as defendant. See City of Waco v. United States Fidelity & Guaranty Co., 293 U.S. 140, 55 S.Ct. 6, 79 L.Ed. 244 (1934); In re Adams, 809 F.2d 1187 (5th Cir.1987).
Recently, this Court addressed an analogous situation in In re Adams, supra, 809 F.2d 1187. In that case, the state court was ousted of jurisdiction over the litigation when the case was removed to federal bankruptcy court under Chapter 13 of the Bankruptcy Code in Louisiana. Consequently, plaintiffs voluntarily dismissed their state court action based upon their erroneous assumption that they could obtain a remedy in bankruptcy. Upon realizing their error, the plaintiffs then requested the federal bankruptcy court to "reinstate" their suit. The court obligingly entered an order reinstating the case. The defendant appealed from the bankruptcy court's order of reinstatement to the district court, which entered an order dismissing the appeal and remanding the litigation to state court. Defendant then appealed the district court's order to this Court.
On appeal, this Court recognized that it could not review the remand order. 4 But we held, nonetheless, that the district court's decision to dismiss the appeal and uphold the bankruptcy court's "reinstatement" of plaintiff's suit necessarily preceded the remand order and thus was separable from it. "[T]he district court would have had nothing to remand if it had overturned the bankruptcy court's reinstatement order and enforced the...
To continue reading
Request your trial
-
Johnson v. Carter
...language instead of the legislative history and give conclusive effect to the Attorney General's certification. See Mitchell v. Carlson, 896 F.2d 128 (5th Cir.1990); Aviles v. Lutz, 887 F.2d 1046 (10th We are of opinion that the district court erred in not giving conclusive effect to the At......
-
Garcia v. U.S.
...this panel held that the certification was not subject to judicial review, based upon a statement to that effect in Mitchell v. Carlson, 896 F.2d 128, 131 (5th Cir.1990), and a subsequent unpublished opinion which, based on that statement, expressly so held. However, this panel recommended ......
-
Trans Penn Wax Corp. v. McCandless
...the court lacked subject matter jurisdiction). See, e.g., Powers v. Southland Corp., 4 F.3d 223, 224 (3d Cir.1993); Mitchell v. Carlson, 896 F.2d 128, 131-33 (5th Cir.1990); Allen v. Ferguson, 791 F.2d 611, 613 & n. 3, 614 (7th Cir.1986). We have further extended Waco's holding in some circ......
-
Jamison v. Wiley
...substituting the United States as defendant under the Westfall Act and resubstituted the employee as defendant. Mitchell v. Carlson, 896 F.2d 128, 132-33 (5th Cir.1990). As the court [T]he resubstitution order ... is separable from the remand order and may be subject to review on appeal. Th......