Mitchell v. Bailey

• Citation: 982 F.3d 937
• Decision Date: 14 December 2020
• Docket Number: No. 19-51123,19-51123
• Parties: Matthew MITCHELL, Plaintiff—Appellant Cross-Appellee, v. Orico BAILEY, Defendant—Appellee, Hoopa Valley Tribe, doing business as AmeriCorps Hoopa Tribal Civilian Community Corps, Defendant—Appellee Cross-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

982 F.3d 937

Matthew MITCHELL, Plaintiff—Appellant Cross-Appellee,

v.Orico BAILEY, Defendant—Appellee,Hoopa Valley Tribe, doing business as AmeriCorps Hoopa Tribal Civilian Community Corps, Defendant—Appellee Cross-Appellant.

No. 19-51123

United States Court of Appeals, Fifth Circuit.

FILED December 14, 2020

REVISED December 30, 2020

Stephen F. Lazor, Tinsman & Sciano, Incorporated, San Antonio, TX, Chad Flores, Esq., Beck Redden, L.L.P., Houston, TX, for Plaintiff-Appellant Cross-Appellee.

Wesson Tribble, Tribble Ross, Houston, TX, for Defendant-Appellee.

Thane D. Somerville, Thomas Paul Schlosser, Morisset, Schlosser, Jozwiak and Somerville, Seattle, WA, Wesson Tribble, Tribble Ross, Houston, TX, for Defendant-Appellee Cross-Appellant.

Before Owen, Chief Judge, and King and Engelhardt, Circuit Judges.

King, Circuit Judge:

Matthew Mitchell sued Orico Bailey and the Hoopa Valley Tribe in federal district court for violations of state tort and contract law. The district court, ruling on a 12(b)(1) motion to dismiss, found sovereign immunity barred suit against Bailey, in his official capacity, and the Hoopa Valley Tribe. The district court then dismissed the claims asserted against these parties with prejudice. This appeal followed. Because we find the district court lacked original jurisdiction, we VACATE the judgment in part, AFFIRM the district court's order of dismissal in part, REVERSE in part, and REMAND with instructions to dismiss without prejudice.

I.

Defendant-appellee cross-appellant Hoopa Valley Tribe ("Hoopa Valley") is a federally recognized Indian tribe. Hoopa Valley created the AmeriCorps Hoopa Tribal Civilian Community Corps ("Hoopa Tribal CCC") with a federal grant. Following severe floods and the resulting federal disaster declaration covering certain Texas counties, several AmeriCorps Disaster Response Teams, including Hoopa Tribal CCC, were deployed to Wimberley, Texas.

Plaintiff-appellant cross-appellee Matthew Mitchell, a Texas resident, was injured while participating in the Wimberley disaster-relief efforts. Mitchell's injuries were allegedly caused by defendant-appellee Orico Bailey's negligence. Bailey is a California citizen who, at all relevant times, was acting in his capacity as a member of the Hoopa Tribal CCC.

Mitchell filed suit in federal district court against Bailey and Hoopa Valley, to recover damages for his injuries. Mitchell asserted a negligence claim and a breach-of-contract claim against Hoopa Valley, and a negligence claim against Bailey. Pursuant to Federal Rule of Civil Procedure 12(b)(1), Bailey and Hoopa Valley filed a motion to dismiss for lack of subject matter jurisdiction. They argued, inter alia , that Mitchell's claims against Hoopa Valley and Bailey were barred by sovereign immunity. Hoopa Valley and Bailey also filed a motion seeking to substitute the United States as the proper defendant.

The district court granted the Rule 12(b)(1) motion on the basis of sovereign immunity and dismissed with prejudice the claims asserted against Bailey, in his official capacity, and Hoopa Valley. Without addressing the merits, the district court dismissed as moot the motion seeking to substitute the United States as the proper defendant. The district court then allowed any remaining individual capacity claims to proceed. The parties stipulated to the dismissal of such claims, the district court entered final judgment, and this timely appeal followed.

II.

We review de novo a Rule 12(b)(1) dismissal, applying the same standards as the district court. Block v. Tex. Bd. of Law Exam'rs , 952 F.3d 613, 616 (5th Cir. 2020). And, we may affirm on any ground supported by the record, including one not reached below. Ballew v. Cont'l Airlines, Inc. , 668 F.3d 777, 781 (5th Cir. 2012).

The party asserting jurisdiction bears the burden of proof and must establish, by a preponderance of the evidence, that the court has jurisdiction based on: "(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Id . (quoting Ramming v. United States , 281 F.3d 158, 161 (5th Cir. 2001) ).

III.

Although much of the district court's opinion and most of Mitchell's arguments on appeal center on the question of sovereign immunity, on cross-appeal, Hoopa Valley asserts that the district court lacked original jurisdiction. We agree and engage in analysis addressing all potential bases for original jurisdiction, rejecting each in turn. As we are free to affirm a Rule 12(b)(1) dismissal on any ground supported by the record, see Ballew , 668 F.3d at 781, we find no occasion to reach the issue of sovereign immunity.

A. Federal-Question Jurisdiction

We begin by addressing whether the district court had federal-question jurisdiction over this case and conclude that it did not.

Under 28 U.S.C. § 1331, a federal court has original jurisdiction over cases "arising under the Constitution, laws, or treaties of the United States." To determine whether a claim arises under federal law, the court examines the "well pleaded" allegations of the complaint and "ignore[s] potential defenses." Beneficial Nat'l. Bank v. Anderson , 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1 (2003). The artful-pleading doctrine serves as a corollary to the well-pleaded complaint rule. See Roland v. Green , 675 F.3d 503, 520 (5th Cir. 2012). Under the artful-pleading doctrine, a federal court may have federal-question jurisdiction over a state-law claim in only two circumstances: when Congress expressly so provides or when a federal statute wholly displaces the state-law cause of action through complete pre-emption. Anderson , 539 U.S. at 8, 123 S.Ct. 2058.

Mitchell's complaint does not allege any federal claims; his claims are limited to state-law negligence and breach of contract. On the face of Mitchell's complaint, there are no federal questions which might support federal-question jurisdiction. The prospect of a tribal sovereign immunity defense does not, in and of itself, "convert a suit otherwise arising under state law into one which, in the statutory sense, arises under federal law." Okla. Tax Comm'n v. Graham , 489 U.S. 838, 841, 109 S.Ct. 1519, 103 L.Ed.2d 924 (1989) ; see TTEA v. Ysleta del Sur Pueblo , 181 F.3d 676, 681 (5th Cir. 1999) ("Under the well-pleaded complaint rule, an anticipatory federal defense is insufficient for federal jurisdiction."). Ordinary negligence and breach-of-contract claims have not been completely pre-empted by any federal law, nor does the resolution of these claims turn on the answer of an important federal question. Cf. Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg. , 545 U.S. 308, 313, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005).

Yet, Mitchell posits that because Bailey and Hoopa Valley sought to have the United States substituted as the proper defendant, pursuant to the Westfall Act, 28 U.S.C. § 2679, the district court had federal-question jurisdiction over this case. Mitchell is incorrect.

To be sure, 28 U.S.C. § 2679(d)(2) "conclusively" vests federal jurisdiction over a suit against a federal employee whom the Attorney General has certified "was acting within the scope of his office or employment." Id . And, under 28 U.S.C. § 2679(d)(3), "upon ... certification by the court, such action or proceeding shall be deemed to be [one] brought against the United States ... and the United States shall be substituted as the party defendant."

But make no mistake, the Westfall Act does not confer independent jurisdiction on a federal court to hear a certification petition at the request of a purported employee. See Sanchez v. Beacon Info. Tech. & Staffing & Serv., LLC , No. EP-08-CV-332-KC, 2009 WL 4877705, at *5 (W.D. Tex. Dec. 10, 2009) (citing Osborn v. Haley , 549 U.S. 225, 241, 127 S.Ct. 881, 166 L.Ed.2d 819 (2007) ); see also Moncrief v. Moncrief , No. 4:98-CV-528-E, 1998 WL 567988, at *3, *5 (N.D. Tex. Aug. 3, 1998) ("[The defendant's] Petition for Certification is, in essence, a motion now pending before this Court rather than a new cause of action/lawsuit asserted by [the defendant] against the United States.") (collecting cases from the Fifth Circuit and sister circuits characterizing the certification process as a motion to substitute); cf. Foster v. Hill , 497 F.3d 695 (7th Cir. 2007) ; B & A Marine Co. v. Am. Foreign Shipping Co ., 23 F.3d 709 (2d Cir. 1994).

Here, it was Bailey and Hoopa Valley that moved, pursuant to the Westfall Act, to have the United States substituted as a proper defendant.¹ The Attorney General never granted a certification in this case, and the district court never entertained the motion for certification at all. In short, there is no support for Mitchell's position that an unresolved motion, filed by Bailey and Hoopa Valley asserting a federal law as a defense, should vest the district court with original jurisdiction over the action.

Mitchell's arguments to the contrary notwithstanding, Gutierrez de Martinez v. Lamagno , 515 U.S. 417, 421, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995), does not support the conclusion that Hoopa Valley's motion pursuant to the Westfall Act vested the court with jurisdiction. In Lamagno , unlike in this case, the federal district court had an independent source of original jurisdiction over the action. Id . Also unlike Lamagno , here, Mitchell was not challenging a certification made by the Attorney General. Rather, Mitchell opposed a motion for certification before the district court, arguing Bailey and Hoopa Valley were not acting as federal employees. Critically, Mitchell's complaint does not allege that Bailey was a federal employee covered by the Westfall Act. Nor does the complaint present any claims under the Westfall Act. Again, to be clear, the complaint does not implicate any issues arising under federal law.²

Looking to the well pleaded allegations of the complaint, ignoring potential...