Kimbro v. Velten, 92-5007

• Decision Date: 05 August 1994
• Docket Number: No. 92-5007,92-5007
• Citation: 30 F.3d 1501
• Parties: , 63 USLW 2113 Marilyn A. KIMBRO, Appellee, v. Dolores VELTEN, Department of Veterans Affairs, and United States of America, Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1501

30 F.3d 1501

308 U.S.App.D.C. 134, 63 USLW 2113

Marilyn A. KIMBRO, Appellee, v. Dolores VELTEN, Department of Veterans Affairs, and United

States of America, Appellants.

No. 92-5007.

United States Court of Appeals, District of Columbia Circuit.

Argued April 21, 1994.

Decided Aug. 5, 1994.

Appeal from the United States District Court for the District of Columbia (90cv0873).

Michael T. Ambrosino, Asst. U.S. Atty., Washington, DC, argued the cause for appellants. With him on the briefs were Eric H. Holder, Jr., U.S. Atty., and John D. Bates, R. Craig Lawrence, and Michael J. Ryan, Asst. U.S. Attys., Washington, DC.

Grace Y. Chung, Washington, DC (student counsel pursuant to Rule 46 of the General Rules of this Court) argued the cause for appellee. With her on the briefs were Steven H. Goldblatt (appointed by the Court), John J. Hoeffner, Supervising Atty., Washington, DC, and Sandra L. Massey, Student Counsel.

Before: SILBERMAN, BUCKLEY, and WILLIAMS, Circuit Judges.

Opinion for the Court filed by Circuit Judge SILBERMAN.

SILBERMAN, Circuit Judge:

Appellants challenge the district court's orders, which resubstituted defendant Velten in lieu of the United States and remanded to the Superior Court of the District of Columbia. We reverse and remand for the district court to conduct an evidentiary hearing to ascertain whether Velten acted within the scope of her employment at the time of the alleged incident.

I.

Marilyn Kimbro filed a $2,000 claim in the Small Claims and Conciliation Branch of the Superior Court of the District of Columbia against fellow Department of Veteran Affairs employee Dolores Velten for assault and battery. Kimbro's amended complaint alleged that Velten "without provocation and without the consent of [Kimbro], viciously struck the Plaintiff on the right arm." The U.S. Attorney, pursuant to the Westfall Act, 28 U.S.C. Sec. 2679(d)(2) (1988) (the Federal Employees Liability Reform and Tort Compensation Act of 1988, Pub.L. No. 100-694, Sec. 6, 102 Stat. 4563, 4564-65 (1988)), and 28 C.F.R. Sec. 15.3 (1993), certified that Velten had been acting within the scope of her employment when the incident allegedly took place. As a result of the certification, the case was removed to the federal court and the United States was substituted as a defendant. The government then moved to dismiss the action on the grounds that Kimbro had no claim under the Federal Tort Claims Act (FTCA). Kimbro opposed the motion and moved to remand the case to superior court, claiming that, as Velten was acting outside the scope of her employment when she assaulted Kimbro, the Attorney General's certification was in error.

Velten filed a sworn declaration claiming that she did not recall ever touching Kimbro and that at the time of the alleged incident she was performing an official duty. William Sandoval, the supervisor of both Velten and Kimbro, also submitted a sworn declaration stating that it was within Velten's scope of employment to move about the hallway where Kimbro was allegedly struck and that all employees are regarded as performing official duties while in the hallway. Kimbro responded with an affidavit stating that while she was attempting to make a copy of Velten's timecard, Velten obstructed her path and then struck her on the right arm. Kimbro argued that this intentional assault could not possibly be within the scope of Velten's employment.

The district court issued an order dismissing the United States as defendant, resubstituting Velten, and remanding the case to the superior court. 767 F.Supp. 6. The court did not decide whether Velten had been acting within the scope of employment (or whether an assault had, in fact, occurred). Instead, the court reasoned that if the assault had occurred, it could not be within the scope of employment, and if the assault did not occur (of course), no tort took place. Under either scenario, the FTCA was not implicated. The district court concluded that the United States was an improper defendant ordered that Velten be resubstituted, and remanded the case to the superior court for further proceedings. After the government unsuccessfully moved for reconsideration, the case files were transferred to the superior court and the government appealed.

II.

Kimbro (whose case was effectively presented by appointed counsel) challenges our jurisdiction to review the district court's order. She claims first that 28 U.S.C. Sec. 1447(d) (1988), which provides that "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise," bars review. Although the government has not expressly appealed the remand order, Kimbro argues that the two orders (the remand order and the resubstitution order) are so interrelated as to be functionally the same. The answer as to who is the proper defendant necessarily resolves the question as to which is the proper forum. If we should conclude that the district court erred in resubstituting Velten as defendant, Kimbro argues, the government would simply remove the case again to district court, and thus would have accomplished indirectly what the statute bars directly. ¹

The Supreme Court long ago, however, held that Sec. 1447(d) does not bar appellate review of an order made in conjunction with a remand to state court, even one that was a basis for the decision to remand. In Waco v. United States Fidelity & Guar. Co., 293 U.S. 140, 55 S.Ct. 6, 79 L.Ed. 244 (1934), a determination that a party who supplied the basis for diversity jurisdiction had been improperly joined by cross-claims was held appealable even though the party's dismissal was included in a single order that also directed a remand. The dismissal decision was thought to be analytically anterior to and separate from the decision to remand. See Waco, 293 U.S. at 143, 55 S.Ct. at 7. We agree with the Third and Fifth Circuits, which have determined that the same principle applies to the situation presented in this case. The resubstitution issue "logically precedes the question of remand." Aliota v. Graham, 984 F.2d 1350, 1353 (3rd Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 68, 126 L.Ed.2d 37 (1993); Mitchell v. Carlson, 896 F.2d 128, 132-33 (5th Cir.1990). The resubstitution decision hinged upon appealable issues of substantive law and is thus separable from the unreviewable jurisdictional question of the proper forum. See In Re TMI Litigation Cases Consolidated II, 940 F.2d 832, 843-44 (3d Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1262, 117 L.Ed.2d 491 (1992).

We also agree with both Circuits that, alternatively, the resubstitution order should be regarded as a reviewable final order within the meaning of 28 U.S.C. Sec. 1291 (1988), because it is covered by the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The resubstitution order easily meets the three criteria of Cohen: it conclusively decided a disputed issue, the issue presented is completely separate from the merits, and it would be effectively unreviewable on appeal from a final judgment. See Cohen, 337 U.S. at 546, 69 S.Ct. at 1225-26. This last because, if resubstituted, Velten would be denied the full protection of the Westfall Act, which is designed to confer immunity not just from judgment but from trial. See Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 2815-16, 86 L.Ed.2d 411 (1985) (holding that district court rejection of defendant's qualified immunity claim was immediately appealable under the collateral order doctrine as the immunity "is effectively lost if a case is erroneously permitted to go to trial.").

Recognizing, apparently, that precedent runs strongly against her, Kimbro relies more heavily on an alternative jurisdictional argument based on one of our own decisions. See Starnes v. McGuire, 512 F.2d 918, 935 (D.C.Cir.1974) (en banc). We said in Starnes that "once a record is transferred to a permissible forum in another district, this court loses jurisdiction over the matter." See id. (emphasis added). ² Of course, we are not reviewing the "transfer" order or remand by the district court as such, but rather the resubstitution decision. Starnes speaks only of "physical transfer of the original papers in a case ... depriv[ing] the transferor circuit of jurisdiction to review the transfer." Starnes, 512 F.2d at 924 (emphasis added).

In any event, we do not think that Starnes forecloses appeal in this case, because for jurisdictional purposes we must assume that the government is correct as to its argument on the merits. And that argument is precisely that the superior court under the circumstances was not a "permissible" forum--which is the prerequisite to the application of Starnes. See infra Part III. In Starnes, we noted that "[w]here the transfer is to a forum that is not permitted under Section 1404(a) (i.e., a forum where the action could not have been brought) it is possible to argue that the transferor court was without power to order the transfer and that therefore the transferor court never lost jurisdiction over the action." Starnes, 512 F.2d at 924 n. 6 (emphasis added). We therefore turn to the main argument--whether the district court erroneously declined to decide the scope of employment issue.

III.

The Westfall Act was explicitly designed to nullify the Supreme Court's decision in Westfall v. Erwin, 484 U.S. 292, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988). Prior to the Court's opinion, the government had asserted (generally successfully) that its employees were absolutely immune to suits for damages under state tort law so long as they were acting within the scope of their official duties. The Supreme Court held in Westfall, however, that this immunity attached only if the employees' conduct in question was within the scope of employment and discretionary in nature. See Westfall, 484 U.S. at 297-98, 108 S.Ct. at 584-85. Congress...