Borneman v. USA, 99-1173

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Citation213 F.3d 819
Docket NumberCA-98-97-7-F,No. 99-1982,No. 99-1173,N,99-1173,99-1982
Parties(4th cir 2000) JOHN MICHAEL BORNEMAN, Plaintiff-Appellee, v. UNITED STATES OF AMERICA, Defendant-Appellant. JOHN MICHAEL BORNEMAN, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee. o. 99-1479,(). In Re: UNITED STATES OF AMERICA; RICHARD MCCAULEY, Petitioners. . Argued:
Decision Date28 February 2000

Appeals from the United States District Court for the Eastern District of North Carolina, at Wilmington.

James C. Fox, District Judge.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

On Petition for Writ of Mandamus.

COUNSEL ARGUED: Neil Irving Fowler, Assistant United States Attorney, Raleigh, North Carolina, for Appellant. James Kenneth Larrick, Wilmington, North Carolina, for Appellee. ON BRIEF: Janice McKenzie Cole, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellant.

Before NIEMEYER, WILLIAMS, and MOTZ, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion.

Judge Niemeyer wrote the opinion, in which Judge Williams and Judge Motz joined.

OPINION

NIEMEYER, Circuit Judge:

In this appeal, we address whether John Borneman, a United States postal employee, may maintain a state common-law action against Richard McCauley, a fellow postal employee, for an assault and battery that allegedly occurred during work. Proceeding under the Westfall Act, the United States represented McCauley and removed this action to federal court, certifying that McCauley had acted within the scope of his employment and substituting the United States as the sole defendant. The United States then moved to dismiss the action because McCauley's conduct, as so imputed to the United States, was protected by sovereign immunity. Without resolving disputed facts, the district court concluded that the United States' certification and substitution were erroneous. The district court found that the removal to federal court was therefore improper and entered an order remanding the case to state court.

After addressing the complex question of whether we have jurisdiction to review the district court's rulings and concluding that we do, we vacate the district court's remand order, as well as its rulings that the United States' certification and substitution were erroneous, and we remand this case to the district court to resolve the factual question of whether McCauley's actions fell within the scope of his employment. We affirm the district court's order denying Borneman his attorneys fees.

I

John Borneman, employed by the United States Postal Service as a rural route mail carrier, commenced this assault and battery action in state court in Wilmington, North Carolina, against a Postal Service manager, Richard McCauley, who, Borneman alleged, assaulted him during a dispute at work. In his complaint, Borneman, who also served as a union shop steward, alleged that on May 9, 1997, he and McCauley became engaged in a heated discussion about labor-management issues and Borneman's request for auxiliary help in his mail-sorting and delivery duties so that he could attend a meeting with a supervisor to discuss a grievance filed on behalf of fellow union members. Borneman felt that McCauley had wrongfully failed to procure the requested auxiliary help, and he informed McCauley that he wanted to file a grievance against McCauley related to this issue. Borneman alleged that McCauley then became angry and followed Borneman out of McCauley's office. Borneman further alleged that as he was walking away, McCauley "kicked[Borneman's] feet and pushed him from behind with his hand causing [Borneman] to fall forward onto the tile floor. [Borneman] fell on his right knee severely injuring it." Borneman asserted that he suffered a "fracture of the right ossicle as well as a lateral meniscal tear," which required surgery.

The United States, as McCauley's employer, undertook to represent McCauley and filed (1) a notice of removal to federal court pursuant to 28 U.S.C. §§ 1441, 1442, and 2679; (2) a certification made by the Attorney General through the Assistant United States Attorney for the Eastern District of North Carolina that, at the time of the alleged assault, McCauley "was acting within the scope of employment as an employee of the United States"; (3) a notice of the substitution of the United States as party defendant in lieu of McCauley; and (4) a motion to dismiss Borneman's complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), asserting sovereign immunity because the United States is not subject to suit under the Federal Tort Claims Act for the torts alleged by Borneman and, in any event, Borneman failed to exhaust administrative procedures.

Borneman opposed removal and moved to remand his suit to state court, arguing that McCauley had acted outside the scope of his employment in assaulting Borneman and that federal jurisdiction was therefore lacking. The government responded with the affidavit of McCauley, in which he asserted that he did not physically touch Borneman and that he did not cause Borneman's injury. According to McCauley, Borneman left McCauley's office, "walking backwards some distance from me," making obscene gestures and "cursing." McCauley stated that he ordered Borneman "to leave the building, turned and was walking back to my office when I heard a noise. I looked back and [Borneman] was on the floor. I never touched [Borneman], did not push him, and presume he tripped while walking backwards." Borneman responded with his own affidavit, alleging additional facts supporting his claims of assault and battery and challenging McCauley's description of the events as"simply untrue." Borneman attached to his affidavit a letter from his physician stating that in his opinion, "the greatest likelihood of mechanism of injury [to Borneman's knee] based on his pathology would be a forward fall," which tended to support Borneman's version of the facts.

Without a hearing and based on this record, the district court disposed of the United States' motion to dismiss the complaint and Borneman's motion to remand in an opinion and order dated October 15, 1998. The district court ruled that under the North Carolina law of respondeat superior, McCauley's actions, taken as alleged by Borneman in his complaint and affidavit, did not fall within the scope of McCauley's employment. The district court therefore concluded that the scope-of-employment certification by the Attorney General "was erroneous," that the substitution of the United States as the defendant "also was erroneous," and that removal of the action by the United States to federal court "was improper." The court determined accordingly that it lacked subject matter jurisdiction and remanded the case to state court, citing 28 U.S.C. § 1447(c) as the basis for its remand.

The United States filed a motion for reconsideration pursuant to Federal Rule of Civil Procedure 59(e), requesting an evidentiary hearing to resolve the factual dispute of whether "Manager Richard McCauley was acting within the scope of his employment when the alleged tortious action occurred." The United States maintained that the court should not have resolved the factual dispute in Borneman's favor without an evidentiary hearing. The district court denied the motion on the grounds that 28 U.S.C. § 1447(d) prevented the court from reconsidering its earlier order.

Thereafter, Borneman filed a motion for an award of attorneys fees and costs in the amount of $6,273 because the position of the United States in removing this case "was not substantially justified." The district court denied this motion, concluding that the United States "did not act improvidently or in bad faith" in removing the suit.

The United States filed this appeal, challenging the district court's ruling that the United States' certification and substitution actions were erroneous based on an application of North Carolina principles of respondeat superior. The United States also filed a petition for a writ of mandamus, seeking review of the district court's order remanding the case to the state court. Borneman filed a cross-appeal, challenging the district court's decision not to award him attorneys fees.

II

We first address Borneman's contention that we lack jurisdiction to consider the United States' appeal and petition for mandamus relief. Borneman argues that the district court's order remanding the case to state court deprives this court of jurisdiction because, under 28 U.S.C. § 1447(d), "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." Borneman maintains that § 1447(d) prohibits us from reviewing both the district court's remand order and its antecedent rulings rejecting the United States' certification and its substitution as the defendant under §§ 5 and 6 of the Federal Employees Liability Reform and Tort Compensation Act of 1988 ("the Westfall Act"), 28 U.S.C. § 2679(b) & (d). As we have noted, the district court, relying on its conclusion that McCauley was not acting within the scope of his employment, ruled that the Attorney General's certification and the substitution of the United States as defendant was "erroneous," and that the removal to federal court was "improper." Concluding that it therefore lacked jurisdiction, the district court remanded the case to state court, citing 28 U.S.C. § 1447(c).

Section 1447(c) of Title 28 provides that a case removed to federal court must be remanded to state court if it appears that the federal court lacks subject matter jurisdiction:

A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it...

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