Wasserman v. Rodacker

• Decision Date: 24 February 2009
• Docket Number: No. 07-5307.,07-5307.
• Citation: 557 F.3d 635
• Parties: Michael F. WASSERMAN, Appellant v. Denise RODACKER, United States Park Police Officer and United States of America, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

557 F.3d 635

Michael F. WASSERMAN, Appellant v. Denise RODACKER, United States Park Police Officer and United States of America, Appellees.

No. 07-5307.

United States Court of Appeals, District of Columbia Circuit.

Argued October 7, 2008.

Decided February 24, 2009.

Michael F. Wasserman, appearing pro se, argued the cause and filed the briefs for appellant.

Marian L. Borum, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Jeffrey A. Taylor, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: SENTELLE, Chief Judge, and RANDOLPH and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge RANDOLPH.^*

RANDOLPH, Circuit Judge:

Michael F. Wasserman brought tort and constitutional claims against a U.S. Park Police officer who arrested him for walking his dogs without a leash and for assaulting a police officer. The district court dismissed the tort claims due to Wasserman's failure to exhaust his administrative remedies and granted summary judgment to the officer on the constitutional claims. We affirm.

I.

Walking a dog on public property without a leash is a criminal offense under District of Columbia Municipal Regulation 24-900.3. On February 20, 2005, Wasserman was walking his two dogs without leashes in Montrose Park, a public park in northwest Washington, D.C. Denise Rodacker, a U.S. Park Police Officer, observed Wasserman and began following him. He started walking away quickly, at which point Rodacker ordered him to stop and answer some questions. Wasserman responded that he did not have to answer and continued walking. Rodacker ran to catch up with him and placed her hand on his left shoulder. She claims that Wasserman tried to pull himself out of her grip, while he claims that he immediately stopped and stood still. Rodacker then forced Wasserman's arm behind his back, handcuffed him, and placed him under arrest.

Rodacker took Wasserman to the Rock Creek Park Police Substation, where he was charged with violating the dog leash law and assaulting a police officer. Because the assault charge was a felony, Wasserman was transported to the Metropolitan Police Department central cell block and held there pending presentment in the Superior Court of the District of Columbia. He appeared before the court the following afternoon. The U.S. Attorney's Office dropped the assault charge. Wasserman was arraigned on a charge of violating Regulation 24-900.3. He agreed to post a $25 security in exchange for the prosecutor's entry of nolle prosequi on this remaining charge.

On February 21, 2006, Wasserman filed suit in the Superior Court of the District of Columbia alleging that Rodacker, acting under color of law, violated his constitutional rights and assaulted, battered, and falsely imprisoned him in violation of the common law of the District of Columbia. The United States substituted itself as a defendant against the common law tort claims pursuant to 28 U.S.C. § 2679(d) and removed the entire case on Rodacker's behalf to the United States District Court for the District of Columbia. The district court denied Wasserman's motion to strike the substitution of the United States and his motion to remand the case to Superior Court. The court granted defendants' motion to dismiss the tort claims pursuant to 28 U.S.C. § 2675(a) because of Wasserman's undisputed failure to exhaust his administrative remedies. It then granted summary judgment to Rodacker on the constitutional claims.

Wasserman asserts that the district court erred in permitting the removal of his claims from the Superior Court. He points out that the attorneys who signed the Notice of Removal and then filed it in district court had not properly entered an appearance as attorneys for Rodacker.¹ Therefore, he contends, Rodacker technically never filed a notice of removal. He further argues that the United States could not substitute itself as a defendant and remove the case on its own behalf under 28 U.S.C. § 2679(d)(2) because that provision does not apply to cases originally filed in the local courts of the District of Columbia.

There is no dispute that Rodacker had the right to remove this case in its entirety; 28 U.S.C. § 1441(b) permits removal of constitutional claims, and § 1442(a)(1) permits removal of claims against an officer of the United States acting under color of office. It is also clear that the notice of removal was filed on behalf of both the United States and Rodacker. The notice recites Rodacker's grounds for removal under 28 U.S.C. § 1441 and § 1442 — grounds that could not apply to the United States. It begins by stating: "Defendant respectfully notifies the Court as follows" and then identifies Rodacker as the defendant. The notice also states that Rodacker is a U.S. Park Police Officer. All indications are that the United States Attorney and the two Assistant United States Attorneys who signed the notice were representing Rodacker; they cited 28 C.F.R. § 50.15, subsection (a) of which authorizes government attorneys to represent a federal employee in civil proceedings if the employee has acted "within the scope of the employee's employment." The notice might also have invoked the provision of the Westfall Act imposing a duty on the Attorney General to "defend any civil action or proceeding brought in any court against any employee of the Government" for tort damages. 28 U.S.C. § 2679(c).

Wasserman says that because the government attorneys did not file a formal entry of appearance, there is no way of knowing whether they were really speaking for Rodacker when they removed the case. This is not a serious contention. Rodacker did not object to the notice of removal; she never complained about the representation the three government attorneys provided her; and throughout the rest of the case, one of those attorneys continued to serve as her counsel. In the district court, she opposed Wasserman's motion to remand. Her intention to remove the case is clear, her notice of removal was timely and properly stated the basis for removal, and any confusion over the identity of her attorney did not prejudice Wasserman. To force her to file an amended notice would be especially pointless.² Cf. Mathews v. Diaz, 426 U.S. 67, 75 & n. 9, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976). The case reached completion in the district court and the district court had jurisdiction over it. Even if there were some minor procedural defect in removing the case, Supreme Court precedent strongly disfavors upsetting the judgment. Caterpillar Inc. v. Lewis, 519 U.S. 61, 75-77, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996).

In a tort case against a federal employee, the United States will be substituted as the party defendant upon certification by the Attorney General that the employee was "acting within the scope of his employment at the time of the incident out of which the claim arose." 28 U.S.C. § 2679(d). This provision applies to "any civil action or proceeding commenced ... in a United States district court," id. § 2679(d)(1), or "in a State court," id. § 2679(d)(2). We have decided three cases in which we indicated that 28 U.S.C. § 2679(d) permitted the United States to substitute itself for one of its employees in cases initially filed in the Superior Court of the District of Columbia. Norman v. United States, 467 F.3d 773 (D.C.Cir. 2006); Haddon v. United States, 68 F.3d 1420 (D.C.Cir.1995), abrogated on other grounds by Osborn v. Haley, 549 U.S. 225, 127 S.Ct. 881, 166 L.Ed.2d 819 (2007); Kimbro v. Velten, 30 F.3d 1501 (D.C.Cir. 1994). In Haddon, for instance, we stated with respect to an action begun in Superior Court that the lawsuit "was initially filed in state court...." 68 F.3d at 1423.

In none of the three decisions just cited did we elaborate on the reasons why the Superior Court was a State court under the Westfall Act. The point must have seemed obvious. The central purpose of the Act is to indemnify federal employees from tort liability arising from acts committed within the scope of their employment. Congress took this step in response to the Supreme Court's denial of absolute immunity in Westfall v. Erwin, 484 U.S. 292, 108 S.Ct. 580, 98 L.Ed.2d 619 (1988). See Westfall Act, Pub.L. No. 100-694, § 2, 102 Stat. 4563, 4563 (1988). The mere "prospect" of tort "liability," Congress found, would "seriously undermine the morale and well being of Federal employees [and] impede the ability of agencies to carry out their missions." Id. § 2(a)(6). A specific Congressional finding stated that the Act was meant to remove "the threat of protracted personal tort litigation for the entire Federal workforce." Id. § 2(a)(5). Federal employees performing official duties in the District of Columbia are obviously a significant part of the "entire Federal workforce."

A.

There are two grounds supporting our earlier decisions, either one of which permitted the United States to substitute itself for Rodacker pursuant to 28 U.S.C. § 2679(d)(1). The first is that upon Rodacker's timely removal of the case to federal court, Wasserman's action was "commenced ... in a United States district court." While any case removed from a state court necessarily originated outside of district court, its removal creates a federal civil case (here, Case 06-cv-01005) with a procedural beginning and end. Federal civil actions are typically commenced when the plaintiff files his complaint in a district court. See FED.R.CIV.P. 3 ("A civil action is commenced by filing a complaint with the court."). Wasserman did not re-file his complaint with the district court after removal and the Federal Rules of Civil Procedure — which treat the District of Columbia as a State, FED. R.CIV.P. 81(d)(2) — explicitly provide that such a formality is unnecessary. FED. R.CIV.P. 81(c)(2). Thus the absence of re-filing does not alter our analysis. According to the applicable rules of civil procedure, Wasserman's action commenced in the district...