The opinion
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 28 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
THERESA DAYTON, personally and as No. 13-35876
the Personal Representative of the Estate
of Thomas E. Cicardo, D.C. No. 3:12-cv-00245-JWS
Plaintiff - Appellee,
MEMORANDUM*
v.
STATE OF ALASKA,
Defendant-third-party-
plaintiff - Appellant,
V.
UNITED STATES OF AMERICA,
Third-party-defendant -
Appellee.
Appeal from the United States District Court
for the District of Alaska
John W. Sedwick, District Judge, Presiding
Argued and Submitted August 13, 2014
Anchorage, Alaska
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: FARRIS, D.W. NELSON, and NGUYEN, Circuit Judges.
The state of Alaska appeals from the district court’s remand of Valerie
Dayton’s action against Alaska to state court. We have jurisdiction to hear appeals
of remand orders under 28 U.S.C. § 1291 if the case was removed pursuant to 28
U.S.C § 1442. 28 U.S.C. § 1447(d). We also have jurisdiction to review the
district court’s remand order since the Attorney General filed a Westfall
Certification in this case. Osborn v. Haley, 549 U.S. 225, 243 (2007). The State of
Alaska’s notice of appeal is timely as it was filed within thirty days of the district
court’s order denying Alaska’s Rule 60(b) motion. F.R.App.P. (4)(a)(1)(A). We
reverse the district court’s remand order.
The Westfall Act “accords federal employees absolute immunity from
common-law tort claims arising out of acts they undertake in the course of their
official duties.” Id., at 229. If a federal employee is sued for wrongful or negligent
conduct, the Westfall Act grants the Attorney General the power “to certify that the
employee ‘was acting within the scope of his office or employment at the time of
the incident out of which the claim arose.’” Id. at 229-30 (quoting 28 U.S.C. §
2679(d)( 2)). Once the certification has been made, “the employee is dismissed
from the action, and the United States is substituted as defendant in place of the
employee.” Id. at 230. “If the action is launched in state court,” it will be removed
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to a federal district court and “‘th[e] certification of the Attorney General shall
conclusively establish scope of office or employment for purposes of removal.’”
Id. at 241 (quoting 28 U.S.C. § 2679(d)(2)). The Supreme Court reasoned that
“Congress adopted the conclusive for purposes of removal language to foreclose
needless shuttling of a case from one court to another.” Id. at 242 (quotation
omitted).
The Attorney General certified that the crew members involved in the
accident at issue were acting within the scope of their federal employment. Dayton
did not challenge this certification when it was made.1 Dayton argues that the
Supreme Court’s language in Osborn applies only to a narrow situation, citing its
statement that “Congress gave district courts no authority to return cases to state
courts on the ground that the Attorney General’s certification was unwarranted.”
Id. at 241. Dayton argues that this language indicates that the Westfall Act does
give district courts the authority to remand on other grounds. Shortly after this
statement, however, Osborn further explains that “[f]or purposes of establishing a
forum to adjudicate the case … § 2679(d)(2) renders the Attorney General’s
1
Technically, this case was removed pursuant to 28 U.S.C. § 1442(a)(1) and
not § 2679(d)(2). Under 28 U.S.C. § 1653, however, “[d]efective allegations of
jurisdiction may be amended, upon terms, in the trial or appellate courts.” Id.
Dayton does not dispute that the federal government could have removed this case
pursuant to § 2679, even through it did not do so.
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certification dispositive.” Id. at 242. This conclusion unambiguously holds that the
Attorney General’s certification establishes federal jurisdiction. Furthermore, if a
district court cannot remand even when a certification is unwarranted, it would
violate the “anti-shuttling” policy purposes of the Westfall Act to allow for a
district court to remand at a later date on other grounds. This case must remain in
federal district court as the Supreme Court has clearly held that the Attorney
General’s certification under “2679(d)(2) renders the federal court exclusively
competent and categorically precludes a remand to the state court.” Id. at 243.
REVERSED.
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