Petition for Writ of Certiorari — Borneman v. United States
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Supreme Ca U.S.
\ FILED
00 449 AUC 2 8 2000
NO.
OFtict OF THE CLERK
ju Che
Supreme Court of the Untted States
JOHN MICHAEL BORNEMAN,
Petitioner,
UNITED STATES OF AMERICA;
RICHARD McCAULEY,
Respondents,
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Petition for Writ of Certiorari
James K. Larrick
Counsel of Record
29 North Third Street
Wilmington, North Carolina 28401
(910) 763-3673
Counsel for Petitioner
THE LEX GROUP ¢ 1205 East Main Street # Suite 2 ¢ Richmond, VA 23219
(804) 644-4419 @ (800) 856-4419 @ Fax: (804) 644-3660 @www.thelexgroup.com
IT.
QUESTIONS PRESENTED FOR REVIEW
Whether the Court of Appeals lacked jurisdiction by
virtue of 28 U.S.C. §1447(d) to hear the appeal of the
Respondents, either by direct appeal or by writ of
mandamus, when the district court’s order of remand
was based on lack of subject matter jurisdiction
pursuant to 28 U.S.C. §1447(c).
Whether the split in circuits on the issue of whether a
plaintiff, having successfully moved to remand a case
to state court, is required to show the removal was
done “improvidently or in bad faith” to recover
attorney's fees pursuant to 28 U.S.C. §1447(c),
should be resolved in favor of the opinions of the
courts of appeals in Mints, Morris, Moore, Morgan &
Mirante.
LIST OF ALL PARTIES TO THE PROCEEDING IN
THE COURT WHOSE JUDGMENT IS SOUGHT TO
BE REVIEWED
[SUPREME COURT RULE 14(b)|
John Michael Borneman
District Court Docket No. 7:98-Cv-97-F (1)
Court of Appeals Record Nos. 99-1173, 99-1479
and 99-1982
United States of America
District Court Docket No. 7:98-Cv-97-F (1)
Court of Appeals Record No. 99-1173, 99-1479
and 99-1982
Richard McCauley
District Court Docket No. 7:98-Cv-97-F (1)
Court of Appeals Record No. 99-1982
TABLE OF CONTENTS
PAGE
OUTED FR IROe Wr RRERNISE ORD ecticiccascnsncactscsannchdscinansensnnapeennon i
REE A-SI RIED cciicinachsasnenpacistadesiabsinktomsieubianbalinedustecunuanaeis ii
Pe Cae SUE citiiciens csiseccicicdeecaiaaawwbeienind ill
Py Ot ey 8 tS ne enn vi
OPTNIONS/ORDERS BELOW ...0ccsssecscssnssesnssssesscessnsevensess l
Pea WNIT ecidaiecihctasipiniensacepiiei elaaiiabiaioetaanctp ldaicsitecaivansivis l
STATUTORY PROVISIONS INVOLVED...............0..08. l
EPA RSME SIE DUES SPAS ib irtrtrsecntscissatsisinaneners ccbdecneebat 2
I. PRCT EORCITOUING 5 csnesncesasscscsrsecsssntcsvssenen 2
II. Proceedings Below : eautabnisianindaacdeumtaaenasbobiin 2
Ill. How the Federal Question Was Presented ..4
REASONS FOR GRANTING THE PETITION
ee is vs
iil
I. THIS COURT SHOULD GRANT
CERTIORARI TO DECIDE A QUESTION
OF FIRST IMPRESSION, AN ANSWER TO
WHICH WILL PROFOUNDLY AFFECT
JURISDICTION IN THE FEDERAL
COURTS AND THE RELATIONSHIP
BETWEEN THE STATE AND FEDERAL
COURTS: WHETHER 28 U.S.C. §1447(d)
PROHIBITS FEDERAL APPELLATE
COURTS FROM’ REVIEWING, BY
APPEAL OR MANDAMUS, AN ORDER
OF THE DISTRICT COURT REMANDING
A REMOVED CASE TO THE STATE
COURT WHEN THE ORDER OF REMAND
IS SPECIFICALLY BASED ON THE
DISTRICT COURT’S VIEW THAT IT
LACKS SUBJECT MATTER _ JURIS-
DICTION, A GROUND SPECIFIED IN 28
U.S.C. §1447(C) ..sesessesssesenenesesensnensnensnseneenenssessnenenes 6
A. The decision of the court of appeals
directly conflicts with a decision of
this Court as this Court did not create
an exception to the bar of review of 28
U.S.C. §1447(d) in its decision in
Thermtron _ Products, _ Inc. _V.
Hermansdorfer to allow appellate
review of an order of remand when
that order is based on the district
court’s view that it lacked subject
mater jurisdiction to hear the removed
iV
B. The decision of the court of appeals
conflicts with the decision of this
Court in Wace v. United States
Fidelity and Guar. Co. in that Waco
does not allow review by direct appeal
of an order of remand because an
“antecedent” order, in this case, the
order of the district court holding that
the scope of employment certification
was erroneous, was reviewable by
.. The decision of the Supreme Court in
Thermtron erroneously interpreted 28
U.S.C §1447(d)’s bar to review of an
order of remand and should be
RAREST 27 ARSE VERE Ce eC Ce
; II. THIS COURT SHOULD GRANT
i CERTIORARI TO SETTLE A
| DISAGREEMENT AMONG THE
CIRCUITS WITH REGARD TO THE ISSUE
| OF WHETHER A PLAINTIFF, HAVING
SUCCESS-FULLY MOVED TO REMAND
A CASE TO STATE COURT, IS
REQUIRED TO SHOW THAT THE
REMOVING PARTY ACTED INPROVI-
DENTLY OR IN BAD FAITH IN
REMOVING THE ACTION IN ORDER TO
RECOVER ATTORNEY’S FEES AND
COSTS PURSUANT TO 28 U.S.C. §1447(c)......
STE AIRED: siiiviicstnesdanicnisaniibsieiibedtbetticiainadapinesteantaucmicellsies
APPENDIX
23
TABLE OF AUTHORITIES
Supreme Court Cases
Alyeska Pipeline Service Co. v. Wilderness Society.,
421 U.S. 240, 44 L. Ed. 2d 141,
O5 S. Ct. 1612 (1975).....sscercescesseseereneserenrsssessennenees 26
Briscoe v. Bell,
432 US. 404, 53 L. Ed. 2d 439,
O7 S. Ct. 2428 (1977)...cescesceseerssrsereenennesssersenens 12, 20
Gravitt v. Southwestern Bell Telephone Co.,
431 US. 723, 52 L. Ed. 2d 1,
O7 S. Ct. 1439 (1977)....ssesceseesesseeseennennesesesersnsensons 12
Thermtron Products, Inc. v. Hermansdorfer,
423 US. 336, 46 L. Ed. 2d 542,
96 S. Ct. 584 (1976).......eeeeeeeeeeees 5,7, 11, 12, 17, 18,
19, 20, 21, 22
Things Remembered, Inc. v. Petrarca,
516 US. 124, 133 L. Ed. 2d 461,
116 S. Ct. 494 (1995)...cecceercsecrserereneersersessrsesnnenees 12
United States v. Rice,
327 US. 742, 752, 90 L. Ed. 982,
66 S. Ct. 835 (1946).....sesceesesseceeneeeeneneeesesersees 12, 18
Waco v. United States Fidelity and Guar. Co.,
493 U.S. 140, 79 L. Ed. 244,
55 S. Ct. 6 (1934)...ecsceeseesseseeseneeeneeeseees 5, 14, 15, 16
vi
Other Federal Cases
A.S. Miranti v. Lee,
Fx Ae Re I Mets TE cresecuicnrctascscavevsanieasncnans 24
ITT Indus. Credit Co. v. Durango Crushers, Inc.,
org ee ye Le + ee enon 25
Mints v. Educational Testing Service, -
99 F. 3d 1253 (3rd Cir. 1996).........0..000000 cenit 24
Moore v. Permanete,
NE A OR EM ee BFE) vers esessssanscssssncesrvcam 24
Morgan Guar. Trust Co. v. Republic of Palau,
O71 F.2d S17 (2d Cig. 1992) .....cssrecstereoanserens 24, 27
Morris v. Bridgestone-Firestone, Inc., ;
PS Bee Be Ce Rs EID iniccsiccsenncnseccccanssoceness 24
Shrader v. Legg Mason Wood Walker, Inc.
880 F. Supp. 366 368 (E.D. Pa. 1995)... 28
Statutes and Rules of Civil Procedure
UE I ii. ccensinlercbsciecapionissworsomann 26, 27
SN ii ict sinsssigscaninctcpimerais 9,24
Re I iin ssicetinspiantebnidbcaiasssonisesnomese 7
Vii
i” : . 7 _
aed an 7? se ———s - 7 ;
aaa : a aa eet _ aan “5 ie ; i
7 ee : =, eg? = : ee a we
John Michael Borneman petitions for a Writ of
Certiorari to review the judgment of the United States Court
of Appeals for the Fourth Circuit in this case.
OPINIONS BELOW
The opinion of the United States Court of Appeals for
the Fourth Circuit in Borneman v. United States of America
and In re: United States of America and Richard McCauley
is reported at 213 F. 3d 819 (4th Cir. 2000). A copy of the
opinion appears in the appendix to this petition at App.1-17.
The written orders of the United States District Court for the
Eastern District of North Carolina (1) remanding the case to
the state court, (2) denying the motion of the United States of
America for reconsideration of the order of remand and (3)
denying the petitioner’s motion for attorney’s fees are not
reported in any reporter. They appear in the appendix to this
petition at App. 18-25, App. 26-31, and App. 32-33,
respectively.
JURISDICTION
The judgment of United States Court of Appeals for
the Fourth Circuit was entered in this case on May 30, 2000.
Jurisdiction to review this petition is conferred on this court
by 28 U.S.C. §1254. The petition is being filed within ninety
(90) days of the date of decision of the case on appeal by the
United States Court of Appeals for the Fourth Circuit.
STATUTORY PROVISIONS INVOLVED
The appendix to this petition contains the following
Statutory provisions: Title 28 of the United States Code,
§§1447 (App.34) and Title 28 of the United States Code
§2679 (App.35-37).
- STATEMENT OF THE CASE
i. Factual Background
John Michael Borneman, the Petitioner, was
employed by the United States Postal Service as a rural route
mail carrier in Wilmington, North Carolina (App. 3). In his
complaint Borneman, who also served as a union shop
steward, alleged that on May 9, 1997, he and Richard
McCauley engaged in a heated discussion over Borneman’s
request for auxiliary help in his duties so he could attend a
meeting to discuss a grievance filed on behalf of a fellow
union member (App. 3). Borneman felt McCauley had
specifically failed to procure the necessary help and
informed McCauley that he intended to file a grievance
against him (App. 3). Borneman alleged that he then left
McCauley’s office in preparation for leaving the building at
the end of the workday but McCauley then became angry
and followed Borneman out of McCauley’s office (App. 3).
When Borneman was walking away, McCauley allegedly
kicked Borneman’s feet and pushed him from behind
causing Borneman to fall to the tile floor causing Borneman
injury to his right knee by way of a fracture to the night
ossicle as well as a lateral meniscal tear which required
surgery (App. 4).
Il. Proceedings Below
Borneman filed his complaint based on assault and
battery in the superior court of New Hanover County, North
Carolina. 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 by an Assistant United States
Attorney for the Eastern District of North Carolina stating 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 substitution of the United States as a
party defendant in lieu of McCauley; and (4) a motion to
dismiss Borneman’s complaint under Rules 12(b)(1) and (6)
of the Federal Rules of Civil Procedure asserting sovereign
immunity because the United States was not subject to suit
under the Federal Tort Claims Act for the torts of assault and
battery and that Borneman had also failed to exhaust
administrative remedies (App. 4). Borneman moved to
remand the suit to the state court arguing that McCauley had
acted outside the scope of employment and there was no
federal jurisdiction (App.4). The government responded with
an affidavit of McCauley in which he stated he did not
physically touch Borneman and that Borneman’s injury was
suffered while Borneman was “walking backwards some
distance from me” and “making obscene gestures” (App. 4).
McCauley further stated that he “presumed he tripped while
walking backwards” (App. 4). Borneman’s responded with
his own affidavit alleging additional facts supporting his
claim of assault and also attached to his affidavit a letter
from his physician stating that in his opinion, “the greatest
likelihood of mechanism of the injury to Borneman’s knee
based on his pathology would be a forward fall” which
tended to support Borneman’s version of the facts (App. 3-5).
Based upon the record the district court ruled that
under North Carolina law, McCauley’s actions did not fall
within the scope of his employment and concluded the scope
of employment certification was erroneous, the substitution
of the United States was erroneous and the removal action by
the United States to federal court was “improper”. (App. 5;
18-25). The district court determined it lacked subject
matter jurisdiction and remanded the case to state court,
specifically citing 28 U.S.C. §1447(c) as a basis for its
remand (App. 4-5; 18-25).
The United States filed a motion for reconsideration
but that motion was denied by the district court on the
ground that 28 U.S.C. §1447(d) barred the district court from
reconsidering its earlier order. (App. 5; 26-31)
Borneman then filed a motion for attorney’s fees but
the motion was denied; the district court concluding that the
United States “did not act improvidently or in bad faith” in
removing the suit (App. 5; 32).
The United States filed appeal to the United States
Court of Appeals for the Fourth Circuit, challenging the
district court’s ruling the United States’ certification and
substitution actions were erroneous and also filed a petition
for writ of mandamus seeking the review of the district
court’s order remanding the case to state court (App. 6).
Borneman filed a cross-appeal from the district court’s
decision not to award attorney’s fees (App. 6).
On May 30, 2000 the court of appeals issued its
opinion and judgment holding that (1) 28 U.S.C. §1447(d)
did not bar its review of the district court’s ruling that
Attorney General’s scope of employment certification was
erroneous or review of the order of remand to the state court,
(2) it had authority to review such rulings either direct appeal
or petition for writ of mandamus, (3) that because it
concluded that material factual issues existed with respect to
the existence of the alleged assault and its nature the district
court’s decision to reject the United States scope of
employment certification was premature, and (4) that
therefore the case would be remanded to the district court
(App. 10-11). The court of appeals also affirmed the district
court’s denial of Borneman’s motion for attorney fees (App.
17).
III. How the Federal Question Was Presented
The jurisdiction of the district court was invoked by
the United States pursuant to 28 U.S.C. §§1441, 1442 and
2679. Petitioner Borneman contended that jurisdiction did
not exist in the district court and successfully obtained
remand of the case to the state court pursuant to 28 U.S.C.
§1447(c). Borneman further contested the jurisdiction of
the court of appeals to review the order of remand by virtue
of the provisions of 28 U.S.C. §1447(d)-
REASONS FOR GRANTING THE PETITION
The decision of the district court remanding the case
to the state court was based upon its view that it lacked
subject matter jurisdiction and the case was then remanded
pursuant to 28 U.S.C. §1447(c). That being the case, 28
U.S.C. §1447(d) prohibits review of the district court’s
decision by the court of appeals by writ of mandamus
pursuant to this Court’s decision in Thermtron Products, Inc.
v. Hermansdorfer, 423 U.S. 336, 46 L. Ed. 2d 542, 96 S. Ct.
584 (1976) because, unlike the case in Thermtron, the
remand order here was based on a §1447(c) ground. §1447
(d) also bars direct appeal as this Court’s decision in Waco v.
United States Fidelity and Guar. Co., 293 U.S. 140, 79 L. Ed.
244, 55 S. Ct. 6, (1934) does not provide authority for the
court of appeals view that because it could review the scope
of employment and substitution issues, that it could also
review the order of remand. Furthermore, the decision of
this Court in Thermtron was erroneous and should be
overruled for the reasons as set forth in the dissent in
Thermtron by then Justice and now Chief Justice Rehnquist.
The district court’s decision denying Borneman
attorney’s fees was erroneous in that it required him to show
that the remand was done “improvidently or in bad faith”
when neither is required by §1447(c). The decision of the
court of appeals ‘affirming the district court’s decision thus
created a disagreement among the circuit courts of appeals
on this issue.
THIS COURT SHOULD GRANT
CERTIORARI 1O DECIDE A
QUESTION OF FIRST IMPRESSION,
AN ANSWER TO WHICH WILL
PROFOUNDLY AFFECT JURIS-
DICTION IN THE FEDERAL COURTS
AND THE RELATIONSHIP BETWEEN
THE STATE AND FEDERAL COURTS:
WHETHER 28 U.S.C. §1447(d) PRO-
HIBITS FEDERAL APPELLATE
COURTS FROM REVIEWING, BY
APPEAL OR MANDAMUS, AN ORDER
OF THE DISTRICT COURT
REMANDING A REMOVED CASE TO
THE STATE COURT WHEN THE
ORDER OF REMAND IS
SPECIFICALLY BASED ON THE
DISTRICT COURT’S VIEW THAT IT
LACKS SUBJECT MATTER JURIS-
DICTION, A GROUND SPECIFIED IN 28
U.S.C. §1447(c).
A. The decision of the court of appeals
directly conflicts with a decision of
this Court as this Court did not create
an exception to the bar of review of 28
U.S.C. §1447(d) in its decision in
Thermtron Products, Inc. Vv.
Hermansdorfer to allow appellate
review of an order of remand when
that order is based on the district
court’s view that it lacked subject
mater jurisdiction to hear the removed
case.
The district court’s order specifically remanded the
case for lack of subject matter jurisdiction, a ground
recognized by 28 U.S.C. §1447(c). (App 25)
28 U.S.C. §1447(d) provides in precise and clear
language that:
An order remanding a case to a state court
from which it was removed is not reviewable
on appeal or otherwise, except that an order
remanding a case to the state court from
which it was removed pursuant to §1443 of
this title shall be reviewable by appeal or
otherwise. !
This provision makes crystal clear the intent of Congress.
The district court recognized that intent in its order denying
the motion of The United States for reconsideration on
January 6, 1999 (App. 26-31). However, in its opinion the
court of appeals has carved out a judicially created exception
to §1447(d), one which was not intended by Congress and
conflicts with the decision of the Supreme Court in
Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336,
46 L. Ed. 2d 542, 96 S. Ct. 584 (1976). The court of appeals
found that:
Thus, 28 U.S.C. §2679(d)(2), which
gives the Attorney General the exclusive
authority to determine removal jurisdiction
under the Westfall Act, comes into tension
with 28 U.S.C. §1447(d), which reserves to a
district court the exclusive authority to
determine on a remand motion whether the
jurisdictional statute justifying removal is
' 28 U.S.C. §1443 applies to civil rights actions and thus is not applicable
to this case.
satisfied. This tension can best be resolved by
giving effect to the intent of each statute and
preserving to the district court its exclusive
authority under §1447(d) over remand orders
based on §1447(c) except when Congress
directs otherwise in a more specific situation,
such as where Congress gives the Attorney
General the exclusive power to decide
whether to have a Westfall Act case tried in
federal court....
Borneman v. U.S., 213 F3d 819, 826 (4th Cir. 2000) (App.
8). The court of appeals then went on to note that:
Accordingly, as Thermtron instructs,
§1447(d) prohibits review of district courts’
determinations of whether jurisdictional
statutes have been satisfied, not review of
determinations where district courts exceed
their jurisdictional authority. Because
§2679(d)(2) “conclusively” vests federal
jurisdiction over a suit against a federal
employee who the Attorney General has
certified “was acting within the scope of his
office or employment, “a district court has no
authority to remand a case removed pursuant
to that section, and the bar of §1447(d) does
not preclude us from reviewing a remand
order when the district court exceeds its
authority.
Id. Thus, the Court of Appeals viewed this Court’s decision
in Thermtron as having recognized an “exception” to
§1447(d)’s bar. Id. In the context of this case the
“exception”, according to the court of appeals, is when a
case is removed pursuant to §2679 which, according to the
court of appeals, “conclusively” vests federal jurisdiction
and removes any authority from the district court to remand
the case. However in the same lengthy reasoning the court
of appeals recognized, referring to this Court’s decision in
Thermtron, that:
. The Court thus left §1447(d) typically
applicable to bar review of “any order
remanding a case on grounds permitted by the
statute.” Id. at 352 (emphasis added)...
Id. The “statute” is 28 U.S.C. §1447(c) which provides that:
The motion to remand the case on the basis of
any defect other than subject matter
jurisdiction must be made within thirty (30)
days after filing of the notice of removal
under §1446(a). If at any time before final
judgment it appears that the district court
lacks subject matter jurisdiction, the case shall
be remanded....
Thus, a case may be remanded on the basis of any “defect”
and is required to be remanded upon the appearance of lack
of “subject matter jurisdiction”.
The long and short of the matter is that the court of
appeals simply disagreed with, or at least thought
“premature”, the decision of the district court finding that
McCauley was not acting within the scope of his
employment when he allegedly assaulted Borneman and that
the district court thus lacked subject matter jurisdiction and
was required to remand the case to the state court by virtue
of the language in §1447(c). The court of appeals thus
carved out its own “exception”.
However, contrary to the opinion of the court of
appeals, this Court in Thermtron did not create an
“exception” to §1447(d) allowing appellate review of the
district court’s order remanding the case when the remand
order was based in the district court’s view that it lacked
subject matter jurisdiction. The court of appeals erroneously
equated jurisdiction for the purpose of removal with the
authority of the appellate courts to review the district court’s
decision on removal “by appeal or otherwise” by essentially
holding that the district court had “no authority” to hold it
lacked jurisdiction when it rejected the scope of employment
certification which was the basis for removal, and thus
mandamus was available to review the order of remand.
However, one does not equate to the other and it takes a
quantum leap to make the jump made here. In essence, the
court of appeals rewrote §1447(d) to the effect that if an
appellate court disagrees with the district court on a
jurisdictional issue in a removal situation, at least in the
circumstances here, and perhaps in others, then the court of
appeals believes that it has the authority to review the district
court’s decision, even one predicated on a jurisdictional
issue, a ground set out in §1447(c) requiring remand.
Neither the statute nor Thermtron allows this.
In Thermtron clearly diversity of citizenship existed
between the parties and the case was removed pursuant to 28
U.S.C. §1441. However, despite jurisdiction being
questioned by no one, the district judge found that “...the
court had reviewed its entire civil docket and found that
there is not available time in which to try the above styled
action in the foreseeable future” and that an adjudication of
the merits of the case would be expedited in the state
court...” 423 U.S. at 339. The court then ordered the
defendants to show cause why the case should not be
remanded and when he believed they had shown no
prejudice they would incur by remand, proceeded to do just
that. In other words, the district court simply refused to hear
the case in the face of unquestioned diversity of jurisdiction
and remanded the case because there was no available time
10
to try the case in his court in the foreseeable future. Thus the
remand order was based on a reason totally unrelated to
anything in the removal statute.
This Court noted that:
It is unquestioned in this case and conceded
by petitioners that this section prohibits
review of all remand orders issued pursuant to
§1447(c) whether erroneous or not and
whether review is sought by appeal or by
extraordinary writ (emphasis added). This
has been the established rule under §1447(d)
and its predecessors stretching back to 1887.
Sec, e.g., In re Pennsylvania Co. 137 USS.
451, 34 L. Ed. 738, 11 S Ct. 141 (1890); Ex
parte Matthew Addy S.S. Co. 256 U.S. 417,
65 L. Ed. 1027, 41 S Ct 508 (1921);
Employers Reinsurance Corp. v Bryant, 299
U.S. 374, 81 L Ed 289, 57 S Ct 273 (1937);
United States v Rice, 327 US 742, 90 L Ed
982, 66 S Ct 835 (1946). If a trial judge
purports to remand a case on the ground that
it was removed “improvidently and without
jurisdiction,” his order is not subject to
challenge in the court of appeals by appeal, by
mandamus, or otherwise.
The issue before us now is whether §1447(d)
also bars review where a case has been
properly removed and the remand order is
issued on grounds not authorized by §1447(c).
Here respondent did not purport to proceed on
the basis that his case had been removed
“improvidently and without jurisdiction.”
Neither the propriety of the removal nor the
jurisdiction of the court was questioned by
respondent in the slightest. Section 1447(c)
was not even mentioned.
423 US. at 343. Thus, the issue in Thermtron was whether
the appellate courts had the authority to review the remand
order if the order is not based on the grounds as set out in
§1447(c). This Court went on to hold, over a vigorous
dissent by then Justice and now Chief Justice Rehnquist, that
a writ of mandamus was available to review the order of
remand when the remand was not based on grounds allowed
by §1447(c). 423 U.S. at 352.
The court of appeals in the present case misconstrued
Thermtron and authorized a review of a remand order
extending far beyond this Court’s holding. The decision of
the court of appeals now places litigants in a position where
even a remand order based on a ground specifically
permitted by the statute, i.e., lack of subject matter
jurisdiction, is reviewable by writ of mandamus. This is
contrary to this Court’s holding in Thermtron where this
Court expressly left §1447(d)’s bar to review of “any order
remanding a case on grounds permitted by the statute” 423
U.S. at 352 (emphasis added). The lack of subject matter
jurisdiction is unquestionably a ground permitted by the
statute (emphasis added) regardless of whether the district
court’s decision is right or wrong. This Court has since
emphasized that §1447(c) provides for remanding a removed
case when the district court determines that there is no
jurisdiction and that such an order of remand is not
reviewable on appeal or otherwise and Thermtron is not to
the contrary. Gravitt_v. Southwestern Bell Telephone Co.,
431 U.S. 723, 52 L Ed 2d 1, 97 S Ct 1439 (1977). This
Court has also emphasized that review is barred when a case
is remanded because of a time defect, another ground under
§1447(c). Things Remembered, Inc. v. Petrarca 516, U.S.
124, 133 L. Ed. 2d 461, 116 S. Ct. 494 (1995). Furthermore,
Section 1447(d) applies “not only to orders of remand in
12
suits removed under [the general removal statute] but to
orders of remand made in cases removed under any other
' statutes as well” (emphasis added). United States v. Rice,
327 U.S. 742, 752, 90 L. Ed. 982, 66 S. Ct. 835 (1946).
The court of appeals’ quarrel is with the district
court’s decision that McCauley was not acting within the
scope of his employment and thus there was no jurisdiction
in the federal courts. However, §1447(d)’s bar to review by
“appeal or otherwise” is effective whether the district court
decides rightly or wrongly the jurisdictional issue leading to
an order of remand. Review of a remand order is
unavailable when the order is based on one of the grounds
enumerated in §1447(c) no matter how plain the legal error
in ordering the remand. Briscoe v. Bell, 432 U.S. 404, 53 L
Ed 2d 439, 97 S Ct 2428 (1977).
The petitioner thus requests that this Court grant
certiorari to correct an erroneous interpretation by the court
of appeals of the statute and Thermtron which interpretation
expanded the reviewability of remand orders far beyond
anything allowed.
B. The decision of the court of appeals
conflicts with the decision of this
Court in Waco v. United States
Fidelity and Guar. Co. in that Waco
does not allow review by direct appeal
of an order of remand because an
“antecedent” order, in this case, the
order of the district court holding that
the scope of employment certification
was erroneous, was reviewable by
appeal.
As the basis for its order of remand, the court of
appeals recognized that the district court stated that it was
13
remanding the case for lack of jurisdiction, citing §1447(c),
232 F. 3d 825. The court of appeals then noted that “... if it
were to accept this conclusion §1447(d) would, appear to bar
it from reviewing the district court’s order”. 213 F. 3d at
825. However, the court of appeals then went on to state that
since the remand order was based on two “antecedent
decisions”, i.e. that the scope of employment certification
and the substitution of the United States as a defendant were
erroneous. Id. The court of appeals then, citing its own
decision in Mangold v. Analytical Servs., Inc., 77 F 3d 1442
(4th Cir. 1996) stated that “if these antecedent components
of the district court’s remand order are reviewable, it follows
that the remand order itself should become reviewable
because its propriety depends on premises that are not
statutorily barred from review, or rather than on whether
federal jurisdictional requirements referenced in §1447(c) are
satisfied”. Id. Thus, in rather cavalier fashion, the court of
appeal’s completely abrogated §1447(d) holding that if any
“antecedent component” of the district court decision was
reviewable, as was the “scope” certification pursuant to
Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 132 L. Ed.
Id 375, 115 S. Ct. 2227 (1995), then §1447(d) does not
apply to remand orders even though based on lack of
jurisdiction. Thus under this analysis all remand orders are
reviewable by direct appeal since rarely if ever, will they not
result from some “antecedent” decision, contrary to the
statute and contrary to this Court’s decision in Thermtron
and other cases cited above.
Waco v. United States Fidelity and Guar. Co., 293
U.S. 140, 79 L. Ed. 244, 55 S. Ct. 6 (1934) was cited by the
court of appeals as authority it for its position. However,
Waco stands for a position quite the contrary and is not
authority for position of the court of appeals.
14
For the purpose of this petition, Waco deserves an
analysis of what it says and does not say because petitioner
believes it has also been misconstrued on other cases.
In Waco the plaintiff sued Combs and Glade,
contractors, and the City of Waco for damages suffered by a
collision with a street obstruction. All were Texas citizens.
Waco then filed a crossclaim against United States Fidelity
and Guaranty Company, a Maryland corporation and the
bonding company for the contractors, alleging that Fidelity
was liable on its bond to pay whatever amount might be
adjudged due by Waco by reason of the fault of the
contractors. Fidelity removed the case to federal court on the
ground that as to it a “separable controversy” existed. On
the plaintiff's motions, the district court entered three orders:
(1) it overruled the plaintiff's motion to remand holding that
the record did indeed present a “separable controversy”
between Waco and Fidelity; (2) it allowed the plaintiff's
motion to dismiss the crossclaim as it found that as to the
plaintiff's cause of action Fidelity was an unnecessary and
improper party under state law; and (3) upon that dismissal,
since there was no diversity among the remaining parties, the
entire case was remanded to the state court. The unintended
consequence was that in the state court the district court’s
finding that Fidelity was an unnecessary and improper party
would be binding upon Waco’s right to maintain its
crossclaim. 293 U.S. at 143. Waco appealed, not from the
order of remand (emphasis added) but from the dismissal of
its action against Fidelity. The court of appeals then
dismissed the appeal holding that no appeal lay from an
order of remand, the cause was irrevocably out of the district
court, the action of the district court in dismissing the city’s
cross-action was moot and its propriety could not be
reviewed. Id.
This Court thus noted that:
15
“ . True, no appeal lies from the order of
remand; but in logic and in fact the decree of
dismissal preceded that of remand and was
made by the district court while it had control
of the cause indisputably of this order is the
subject of an appeal; and, if not reversed or
set-aside, is conclusive upon the petitioner”.
Id.
The Court then held that Waco was entitled to have
the court of appeals determine whether dismissal of its case
against Fidelity was proper. Id. However, this Court then
went on to distinctly point out:
A reversal cannot affect the order of remand
(emphasis added) but it will at least, if the
dismissal of the petitioner’s complaint was
erroneous, remit the entire controversy with
the Fidelity Company still a party, to the state
court for such further proceedings as may be
in accordance with law.
293 US. at 143-144. Therefore, this Court, contrary to the
opinion of the court of appeals, did not hold that an order of
remand could be reviewed in spite of the bar of §1447(d),
but only that the prior dismissal order could be reviewed
under the very unique circumstances of this case. Thus the
bar of §1447 stands as to any review of any order of remand,
unless, as in Thermtron, the remand is for a reason as set
forth in §1447(c).
The court of appeals thus misinterpreted Waco, again
crafting a judicially created exception to the bar of review of
a remand order by §1447(d) contrary to the intent of
Congress and to the decisions of this Court.
16
i. The decision of the Supreme Court in
Thermtron erroneously interpreted 28
U.S.C §1447(d)’s bar to review of an
order of remand and should be
overruled.
As noted above, Thermtron held that the provisions
of 28 U.S.C. §1447(d) applied only to remand orders under
§1447(c) and mandamus was an appropriate remedy when a
remand order was not based on the grounds authorized by
§1447(c). As noted by now Chief Justice Rehnquist in his
dissent, in which he was joined by then Chief Justice Burger
and Justice Stewart:
The court begins its discussion in this case by
asking the wrong questions, and compounds
its error by arriving at the wrong answer to at
least one of the questions thus posed. The
principal, and in my view only, issue
presented for review is whether the Court of
Appeals was correct in concluding that it is
without jurisdiction to review the order of
remand entered by the District Court for the
Eastern District of Kentucky. Even though
jurisdiction existed, it of course follows that
there was no power in the Court of Appeals to
examine the merits of petitioner’s contentions
that the order of remand _ exceeded
respondent’s authority, and that its order
denying relief must be affirmed. Mansfield,
C & LMRCo. v. Swan, 111 U.S. 379, 28 L.
Ed. 462, 4th S. Ct. 510 (1884). As I think it
plain that Congress which has unquestioned
authority to do so, Sheldon v. Sill, 8 How.
441, 12 L. Ed. 1147 (1850), has expressly
prohibited the review sought by petitioners, I
dissent.
423 U.S. at 353-54. §1447(d) is plain on its face; indeed it is
hard to imagine the language “by appeal or otherwise” could
be more expansive in extending the bar to review to all
orders of remand, however denominated.
The majority in Thermtron correctly, as set out
above, recognized that the general rule prohibiting review of
remand orders has been a part of American jurisprudence for
at least a century. 423 U. S. 343.
The non-reviewability rule rests on a “policy of not
permitting interruption of the litigation of the merits of a
removed cause by prolonged litigation of questions of
jurisdiction of the district court to which the cause is
removed”. United States v. Rice, 327 U.S. at 751. Also, as
eloquently noted by Chief Justice Rehnquist in his dissent in
Thermtron:
Congress’ purpose in barring review
of all remand orders has always been very
clear — to prevent the additional delay which a
removing party may achieve by seeking
appellate reconsideration of an order of
remand. The removal jurisdiction extended
by Congress works a significant interference
in the conduct of litigation commenced in
state court. While Congress felt that making
available a federal forum in appropriate
instances justifies some such interruption and
delay, it obviously thought it equally
important that when removal to a federal
court is not warranted the case should be
returned to the state court as expeditiously as
possible. If this balanced concern is
disregarded, federal removal provisions may
become a device affording litigants a means
of substantially delaying justice.
It is clear that the ability to invoke
appellate review, even if ultimately
unavailing on the merits, provides a
significant opportunity for additional delay.
Congress decided that this possibility was an
unacceptable source of additional delay and
therefore made the district courts the final
arbiters of whether Congress intended that
specific actions were to be tried at a federal
court.
I do not doubt that the district courts
may occasionally err in making these
decisions, and certainly Congress was not
unaware of these probabilities. All decision
makers err from time to time, and judicial
systems frequently provide some review to
remedy some of the errors. Such review is
certainly not compelled. Congress balanced
the continued disruption and delay caused by
further review against the minimal possible
harm to the party attempting removal - who
will still receive a trial on the merits before a
state court which cannot be presumed to be
unwilling or unable to afford substantial
justice - and concluded that no review should
be permitted in these cases. Congress has
explicitly indicated its intent to achieve this
result; indeed “it is difficult to see what more
could be done to make the action of [remand]
final, for all the purposes of the removal, and
not the subject of review...” Morey _v.
Lockhart, 123 U.S. 56, 57, 31 L. Ed. 68, 8 S.
19
Ct. 65 (1887). Yet the court today holds that
Congress did not mean what it so plainly said.
423 US. at 354-55. The predicate through which remand
was ordered in the present case was a §1447(c) reason, and
whether the district court’s decision was erroneous or not on
the jurisdictional issue, this Court’s opinion in Briscoe v.
Bell, cited above, makes clear that review is precluded no
matter how plain the legal error in ordering the remand.
In Thermtron, Chief Justice Rehnquist then went on
to warn of the consequences of this Court’s holding:
Nor is it any more than a naive hope to
suppose, as the Court apparently does, that the
effect of today’s decision will be limited to
the unique circumstances of this case...
The Court seems to believe the instant
case different because it has determined to its
satisfaction that respondents order was not
merely an erroneous application of §1447(c),
but was based upon a consideration district
court’s are not empowered to evaluate. I
think the court’s purported distinction both
unworkable and portentous of the significant
impairment of Congress’s carefully worked
out scheme. The Court relies upon its belief
that respondent’s order made clear that he was
not acting in accordance with §1447(c). But
there was no requirement that respondent
issue any explanation of the grounds for his
remand order, and there is no reason to expect
that district courts will always afford such
explanations. If they do not, is there now
jurisdiction in the courts of appeals to compel
an explanation so as to evaluate potential
20
» a> ly Vt OT ee oe RYE 1 Spee
claims that the lower court was not acting
pursuant to subsection (c)? And what if the
district court does state that it finds no
jurisdiction, using the rubric of §1447(c), but
the papers plainly demonstrate such a
conclusion to be absurd? Are potential
challengers to such an order entitled to seek
the aid of the court of appeals, first to
demonstrate that the order entered by the
lower court was a sham and second to block
that order pursuant to today’s decision? If the
Court’s grant of certiorari and order of
reversal in this case are to have any meaning,
it would seem that such avenues of attack
should clearly be open to potential opponents
of orders of remand. Yet it is equally clear
that such devices would soon _ render
meaningless Congress’ express, and
heretofore fully effective, — directive
prohibiting such tactics because of their
potential for abuse by those seeking only to
delay.
423 U.S. 356-357.
Alas, the portents warned of by Chief Justice
Rehnquist have occurred. The court of appeals has now
crafted an “exception” to §1447(d)’s bar to review even in a
circumstance in which the district court’s remand order
specifically stated that the remand was for lack of
jurisdiction, a recognized ground under §1447(c). The
“exception” created by the court of appeals, and not by this
Court, is where removal is pursuant to a specific statute, i.e.,
28 U.S.C. §2679.
The court of appeals has thus erroneously elevated a
disagreement over the correctness of the district court’s
21
decision on the jurisdiction issue to a decision meaning
§1447(d) has been abrogated when a federal employee is
sued and a scope of employment certification issues. Thus,
the court of appeals has removed the district court as final
arbiter of the jurisdictional issue and has substituted in lieu
thereof the Attorney General, or in this case, his designee, an
Assistant United States Attorney for the Eastern District of
North Carolina, hardly a disinterested arbiter.
The present case is a creation of state law. The
complaint is based upon an assault and battery allegedly
perpetrated by one resident of New Hanover County, North
Carolina, against another. As recognized by the court of
appeals, state law will be applied to the case if tried
regardless of where the trial occurs. 213 F. 3d at 829 (App.
16). It seems only logical that the courts of North Carolina
would be more familiar with their own tort law with which
they deal everyday, than the federal forum. Conversely, why
should the federal courts be cluttered with what is in reality a
creature of state law? If the outcome at the trial level in state
court is unsatisfactory to either party, then the appellate
courts of North Carolina would be asked to pass review on
law which they apply everyday, and even sometimes change.
An appeal after the trial on merits in federal court would
place the court of appeals in the role of attempting to predict
what the state appellate courts would do under similar
circumstances, perhaps even leading to a different
conclusion on appeal then one which would have been
reached by the state courts.
Both Borneman and McCauley are residents of New
Hanover County from which a jury pool of their peers would
be drawn. If the case is remanded to state court, McCauley
“ will still receive a trial on the merits before a state court
which cannot be presumed to be unwilling or unable to
afford substantial justice”. See, Thermtron, 423 USS. at 355.
As warned by Chief Justice Rehnquist, Borneman has now
22
lle
been required to undergo a lengthy delay in reaching trial on
the merits of his case. His original complaint was filed in the
Superior Court of New Hanover County in May, 1998. We
now find ourselves almost two years and four months later
involved in protracted litigation over a jurisdictional issue
which has not advanced this case one iota towards resolution
on the merits to which Borneman is entitled before his case
grows stale with age. Furthermore, as obvious from the
record in this case, the litigation has been between parties of
unequal financial circumstances leaving Borneman with the
burden of substantial legal costs, while at the same time his
opponent, McCauley, is represented at public expense.
Could all this have been avoided? The obvious
answer must only be in the affirmative. Thermtron, as
warned by Chief Justice Rehnquist, in so far as it allowed
appellate review of an order of remand for a reason not set
out in §1447(c), and as erroneously extended by the Fourth
Circuit in this case, has led us down a slippery slope. As has
often been said, “bad facts make bad law”. With all due
respect to the majority in Thermtron, that case was
erroneously decided. This Court should grant certiorari
because now is the opportunity to overrule Thermtron and
correct that error, make clear that §1447(d) means what it
says and foreclose the opportunity for the types of results
reached by the court of appeals here.
Il. THIS COURT SHOULD GRANT
CERTIORARI TO SETTLE A
DISAGREEMENT AMONG THE
CIRCUITS WITH REGARD TO THE
ISSUE OF WHETHER A PLIANTIFF,
HAVING SUCCESSFULLY MOVED TO
REMAND A CASE TO STATE COURT,
IS REQUIRED TO SHOW THAT THE
REMOVING PARTY ACTED INPROVI-
DENTLY OR IN BAD FAITH IN
23
REMOVING THE ACTION IN ORDER
TO RECOVER ATTORNEY’S FEES
AND COSTS PURSUANT TO 28 U.S.C.
§1447(c).
This issue prevents a question ‘of first impression
before the Supreme Court and one on which, as a result of
the decision of the court of appeals in this case, there is now
a disagreement among the circuit courts of appeals.
In its order denying Borneman’s motion for
attorney’s fees pursuant to 28 U.S.C. §1447(c), the district
court found that the United States did not act “improvidently
or in bad faith in removing the case”. (App. 5). Although
only obliquely addressing the issue in light of its holding that
the district judge erred in remanding the case, the court of
appeals affirmed the district court’s denial of attorney’s fees
thereby also affirming the district court’s reasoning. 213 F.
3d at 829. (App. 32-33).
28 U.S.C. §1447 (c) provides in pertinent part that:
“ An order remanding the case may require
payment of just costs and the actual expenses,
including reasonable attorney’s fees, incurred
as a result of the removal...”
Though not previously addressed by this Court this
issue has been addressed by a number of the courts of
appeals which have until now, held that a showing of “bad
faith” is not required in order to award attorney’s fee under
the statute. See, Mints v. Educational Testing Service, 99
F.3d 1253 (3rd Cir. 1996); Morris v. Bridgestone-Firestone,
Inc., 985 F.2d 238 (6th Cir. 1993); Moore v. Permanente 981
F.2d 443 (9th Cir. 1992), Morgan Guar. Trust Co. v.
Republic of Palau, 971 F 2d 917 (2nd Cir. 1992) and A.S.
24
Miranti v. Lee 3 F.3d 925 (Sth Cir. 1993). As noted by the
Third Circuit in Mints:
“...We agree with the other courts of appeals
which have held that the District Court may
require the payment of fees and costs by a
party which removed the case which the court
then remanded, even though the party
removing the case did not act in bad faith.
See, Morris v. Bridgestone-Firestone, Inc.,
985 F.2d 238, 240 (6th Cir. 1993); Moore v.
Permanente, 981 F.2d at 447; Morgan Guar.
Trust Co. v. Republic of Palau, 971 F2d at
923-924...”
Therefore, the Second, Third, Fifth, Sixth and Ninth Circuits
have held that a showing of bad faith is not required in order
to recover attorney’s fees under 28 U.S.C. §1447(c). Thus,
the decision of the Fourth Circuit in this case affirming the
district court’s denial of attorney’s fees because the case was
not removed “improvidently” or in “bad faith” has created a
split of authority among the circuits.
Essentially, the United States in the district court did
not take the position that Borneman had to show “bad faith”;
but appeared to take the position it should be absolved
because of its “good faith”. However, Congress imposed no
“bad faith” requirement or “good faith” defense when it
originally enacted 28 U.S.C. §1447(c) or when the statute
was amended into its present form in 1988. The cases which
are cited above completely reject the “good faith” or “bad
faith” approach. The district court, in its order, cited the
Fourth Circuit’s decision in ITT Indus. Credit Co. v.
Durango Crushers, Inc., 832 F.2d 307 (4th Cir. 1987) as
authority for its decision. That case was decided when 28
U.S.C. §1447(c), as it existed prior to the 1988 amendment,
allowed the award of “just costs” if the lawsuit was
25
“removed improvidently and without jurisdiction” and made
no provision to award attorney's fees. However the Fourth
Circuit upheld an award of attorney’s fees finding that the
defendant’s removal petition was so patently without merit
that it was filed in “bad faith”. However, the decision was
based on the Supreme Court’s decision in Alyeska Pipeline
Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct.
1612, 44 L.Ed. 2d 141 (1975) which “...pointed out that
courts do have an inherent power to award attorney’s fees
against a party who has acted in bad faith. 420 U.S. at 258-
59, 95 S.Ct. 1622.” ITT Indus. Credit Co. 832 F.2d at 308.
Thus, ITT Indus. Credit Co. was not decided under §1447(c)
which then only provided for an award of “costs” and then
only when the case was removed “improvidently and without
jurisdiction” but under the inherent power of the court in
“bad faith” cases.
§1447(c) was then amended in 1988 to allow an
award of attorney’s fees as well as costs, and deleting the
requirement that they be awarded only where the case was
removed “improvidently and without jurisdiction”. The
statute as enacted allowed the recovery of “...attorney’s fees,
incurred (emphasis added) as a result of removal...” Nothing
was mentioned of any other requirement and the intent of
Congress should have been clear that attorney’s fees are to
be awarded when “incurred as a result of removal”.
Congress by removing from the statute that costs are
to be awarded only if the lawsuit was removed
“improvidently and without jurisdiction” quite clearly
indicated that there was also no requirement the case be
“improvidently” removed to award “costs” which now also
include “attorney’s fees”. The 1988 amendment to 28
U.S.C. §1446 also deleted subdivision (d) of that statute
requiring that a bond accompany the removal. The intent is
contained in the commentary to §1446:
26
“,..-Congress points to the 1988 enactment of
subdivision (c) of §1447 permitting a remand
order in an improperly removed case may
award not merely costs now, but “actual
expenses, including attorney’s fee” as
offering an adequate costs threat and notes
that Rule 11 of the Federal Rules of Civil
Procedure can be turned to for “a more severe
sanction” if it proves warranted. (See House
Report 100-889, August 26, 1988, page
y 4 lea
In Morgan, cited above, the Second Circuit reviewed
the legislative intent:
Whatever argument might have been made to
a bad faith removal requirement under the old
statute is mooted, in our view, by the
amended version of Section 1447(c)
applicable to costs and attorney’s fees. The
amendment did not add the phrase “bad faith”
to the statute, but rather deleted the argument
that the case have been “removed
improvidently”. Indeed the statute, as
amended makes no reference at all to the state
of mind or content of the party removing the
action, instead focusing strictly on the
absence of subject matter jurisdiction. The
amendment also added to the statute an
explicit reference to attorney’s fees as part of
the costs that may be awarded. We must, at
least in the absence of strong and convincing
evidence to the contrary, consider such
sharply different wording to have been a
definite choice of Congress.
981 F. 2d at 446.
27
The authority among the courts of appeal is therefore
overwhelming in rejecting what the United States asserts to
be a “good faith” defense. No such requirement was
included in §1447 (c) when it was adopted by Congress. The
only qualifier to the award of attorney’s fees, in that section
is that the court “may” award attorney’s fees, thus vesting
the decision in the sound discretion of the court. Another
excellent analysis of Congress’ intent is contained in the
opinion of the district Court in Shrader v. Legg Mason Wood
Walker, Inc. 880 F. Supp. 366, 368 (E.D. Pa. 1995), as
follows:
“We discuss the statutory language in more
detail below, but at the outset we note that
§1447(c) provides district courts with the
discretion to remedy abuses in the use of
removal procedure. As Mary wisely
concedes, §1447(c) does not require a finding
of bad faith, see, A.S. Miranti vs. Lee, 3 F.3d
925, 929 (Sth Cir. 1993); Moore Vs.
Permanete Medical Group, Inc., 981 F.2d
443, 445-447 (9th Cir. 1992), Morgan Guar.
Trust Co. vs. Republic of Palu, 971 F.2d 917,
923-23 (2nd Cir. 1992), and we therefore
conclude that Congress intended the statute to
serve remedial not punitive purposes. See,
e.g. Moore, 981 F.2d 447 (noting that
§1447(c) awards are “simply
reimbursement”); Morgan Guar. Trust Co.
971 F.2d 926 (Walker, J., dissenting)
(“Section 1447 is principally designed to
compensate...”). The legislative history of
§1447(c) confirms this interpretation. See,
ELR. Rep. No. 889. 100th Cong., 2d Sess. 72
(1988), reprinted in 1988 U.S.C.C.A.N. 5982,
6033 (noting that Sec. 1447 (c) allows
28
“payment of actual expenses incurred” and
that “Civil Rule 11 can be used to impose a
more severe sanction when appropriate”’).”
Thus, Congress’ intention that this statute serve a “remedial”
rather than a “punitive” purpose reveals clearly that
Congress did not intend that a plaintiff be required to show
“bad faith” or a lack of “good faith” to obtain the award of
attorney’s -fees,- nor that the case was removed
“improvidently”.
This Court should grant certiorari to resolve the
disagreement among the circuits and to establish the rule that
a party, having successfully moved to remand a case, is not
required to show that the removal was done “improvidently
or in bad faith” to recover attorney’s fees.
CONCLUSION
For the reasons set forth above, the petition for writ
of certiorari should be granted.
Respectfully submittg4,
(sop k of Record
29 North Third Street
Wilmington, North Carolina 28401
(910) 763-3673
29
TABLE OF CONTENTS
Appendix to the Petition
Opinion
United States Court of Appeals
For the Fourth Circuit
III BT Ps I vaccska ce vevesccsasccecesccssceses:
Order
United States District Court
Eastern District of North Carolina
entered October 16, 1998 .....................
Order
United States District Court
Eastern District of North Carolina
entered January 6, 1999................... wre
Order
United States District Court
Eastern District of North Carolina
@mdered March 3, 1999... .cccessccscccccccccce
ee ein itha a shkstenscscccsccs
BE Ars asda aaa MAAN SR RGAE AGE NAG enasncccececce
App. i
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
Argued: February 28, 2000
Decided: May 30, 2000
Entered: May 30, 2000
JOHN MICHAEL BORNEMAN,
Plaintiff-Appellee,
V. No. 99-1173
UNITED STATES OF AMERICA,
Defendant-Appellant.
JOHN MICHAEL BORNEMAN,
Plaintiff-Appellant,
V. No. 99-1479
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeals from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, District Judge.
(CA-98-97-7-F)
In Re: UNITED STATES OF AMERICA;
RICHARD MCCAULEY, No. 99-1982
Petitioners.
On Petition for Writ of Mandamus.
(CA-98-97-7-F)
App. |
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.
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.
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
App. 2
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]
te fall forward onto the tile floor. [Borneman] fell on his
right knee severely injuring it." Borneman asserted that he
App. 3
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. SS 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 eny 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
App. 4
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.
App. 5
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.
IT
We first address Borneman's contention that we Ax
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:
App. 6
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 appears that the district court
lacks subject matter jurisdiction, the case shall
be remanded.
If a district court orders a remand based on § 1447(c), its
order is not reviewable by a court of appeals by reason of 28
U.S.C. § 1447(d). Thus, while 28 U.S.C. §§ 1441, 1442, and
2679-- the sections relied upon by the United States in this
case -- are among various statutes authorizing removal of
state-filed cases to federal court, review by appeal, by
mandamus, or otherwise is precluded under § 1447(d) if the
remand is based on one of the "grounds specified in §
1447(c)." Things Remembered, Inc. v. Petrarca, 516 US.
124, 127 (1995); Thermtron Prods., Inc. v. Hermansdorfer,
423 U.S. 336, 345-46 (1976). Whether a district court's
remand order is reviewable under § 1447(d) is not
determined by whether the order explicitly cites § 1447(c) or
not. See Mangold v. Analytic Servs., Inc., 77 F.3d 1442, 1450
(4th Cir. 1996). The bar of § 1447(d) applies to any order
invoking substantively one of the grounds specified in §
1447(c). See id. at 1450-51.
In this case, the court did state that it was remanding
the case for lack of jurisdiction, citing 28 U.S.C. § 1447(c).
Therefore, if we are to accept this conclusion, § 1447(d)
would, at first blush, appear to bar us from reviewing the
district court's order. Unfortunately, in the circumstances
presented, the task is not so straightforward. The district
court's conclusion that it did not have subject matter
jurisdiction was premised on two antecedent decisions that
are both judicially reviewable and appealable: (1) that the
United States' scope-of-employment certification was
erroneous and (2) that the United States’ substitution as
App. 7
defendant was erroneous. 1' If these antecedent components
of the district court's remand order are reviewable, it follows
that the remand order itself should become reviewable
because its propriety depends on premises that are not
statutorily barred from review, rather than on whether the
federal jurisdictional requirements referenced in § 1447(c)
are satisfied. See Mangold, 77 F.3d at 1453. And an
otherwise reviewable ruling is not shielded from review
merely because it is a constituent aspect of a remand order
that would itself appear to be insulated from review by §
1447(d). See Waco v. United States Fidelity & Guar. Co.,
293 U.S. 140, 143 (1934) (treating separately components of
district court's order dismissing a party and remanding
action); Mangold, 77 F.3d at 1446 (treating separately
components of district court's order denying immunity and
remanding action to state court).
But even if a remand order does not in this oblique
manner become subject to review when its underlying
premises are appealed, § 1447(d)'s restriction on appellate
review of remand orders cannot be read categorically when
other statutes in tension with it are considered. Removal by
the United States in this case rested not only on §§ 1441 and
1442 but also on § 2679(d)(2), which provides that upon a
scope-of-employment certification by the Attorney General,
the state-court action "shall be removed" to federal court.
Moreover, the statute provides that for purposes of removal,
the certification is "conclusive[ ]." 28 U.S.C. § 2679(d)(2).
In Gutierrez de Martinez v. Lamagno, 515 U.S. 417
(1995), the Supreme Court held that the Attorney General's
scope-of-employment certification made under § 2679(d)(2)
'See Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434
(1995) (holding that certification for purposes of substitution is judicially
reviewable); Jamison v. Wiley, 14 F.3d 222, 230 n.10, 233-34 (4th Cir.
1994) (holding that rejection of certification amounts to a denial of
absolute immunity which is immediately appealable); Aliota v. Graham,
984 F.2d 1350, 1353-54 (3d Cir. 1993) (same); Mitchell v. Carson, 896
F.2d 128, 133 (Sth Cir. 1990) (same).
App. 8
serves two offices. It forms the basis for the United States to
be substituted as defendant, a consequence that is subject to
judicial review. See 515 U.S. at 434. It also conclusively
establishes removal jurisdiction in the federal court, a
consequence that is not judicially reviewable. See id. at 432
("Congress made the Attorney General's certificate
conclusive solely for purposes of removal, and. natahly rat
for purposes of substitution."); see also Aliota v. Graham,
984 F.2d 1350, 1357 (3d Cir. 1993) ("Congress, by expressly
stating that the Attorney General's certification is
‘conclusive’ as to jurisdiction, has prohibited a district court
from using its disagreement with the Attorney General's
scope of employment certification to deny jurisdiction and so
send the case back to the state court where it originated").
Thus, in § 2679(d)(2), Congress withdrew from judicial
determination any review of the Attorney General's decision
to remove a case and have it determined in a federal forum.
As the Third Circuit stated in Aliota, "Since subject matter
jurisdiction has been conclusively established, there is no
jurisdictional question to be resolved by the district court."
984 F.2d at 1357. And any district court that attempts to
review the propriety of the Attorney General's removal made
under § 2679(d)(2) exceeds its statutory authority.
Thus, 28 U.S.C. § 2679(d)(2), which gives the
Attorney General the exclusive authority to determine
removal jurisdiction under the Westfall Act, comes into
tension with 28 U.S.C. § 1447(d), which reserves to a district
court the exclusive authority to determine on a remand
motion whether the jurisdictional statute justifying removal
is satisfied. This tension can best be resolved by giving effect
to the intent of each statute and preserving to the district
court its exclusive authority under § 1447(d) over remand
orders based on § 1447(c) except when Congress directs
otherwise in a more specific situation, such as where
Congress gives the Attorney General the exclusive power to
decide whether to have a Westfall Act case tried in federal
court. Stated otherwise, § 1447(d) typically precludes review
App. 9
of remands based on whether the requirements of federal
jurisdiction have been satisfied, such as whether there is
complete diversity, see Aliota, 984 F.2d at 1357, but
Congress never" intended to extend carte blanche authority
to the district courts to revise the federal statutes governing
removal by remanding cases on grounds that seem justifiable
to them but which are not recognized by the controlling
statute," Thermtron, 423 U.S. at 351. Indeed, in Thermtron,
the Supreme Court appears to have recognized an exception
to § 1447(d)'s bar as follows:
Because the District Judge remanded a
properly removed case on grounds that he had
no authority to consider, he exceeded his
statutorily defined power; and issuance of the
writ of mandamus was not barred by §
1447(d).
423 U.S. at 351. The Court thus left § 1447(d) typically
applicable to bar review of "any order remanding a case on
grounds permitted by the statute." Id. at 352 (emphasis
added); see also Mangold, 77 F.3d at 1453; Aliota, 984 F.2d
at 1357.
Accordingly, as Thermtron instructs, § 1447(d)
prohibits review of district courts' determinations of whether
jurisdictional statutes have been satisfied, not review of
determinations where district courts exceed _ their
jurisdictional authority. Because § 2679(d)(2) "conclusively"
vests federal jurisdiction over a suit against a federal
employee who the Attorney General has certified” was
acting within the scope of his office or employment," a
district court has no authority to remand a case removed
pursuant to that section, and the bar of § 1447(d) does not
preclude us from reviewing a remand order when the district
court exceeds its authority.
Therefore, we hold (1) that 28 U.S.C. § 1447(d)
interposes no bar to either our review of the district court's
App. 10
ruling that the Attorney General's scope-of-employment
certification for the purpose of substitution under the
Westfall Act was erroneous or our review of the consequent
remand order entered in violation of 28 U.S.C. § 2679(d)(2)
and (2) that we have authority to review such rulings either
as appealable decisions under 28 U.S.C. § 1291 or on
petition for a writ of mandamus. See Quackenbush v. Allstate
Ins. Co., 517 U.S. 706, 714 (1996) (finding remand order
appealable final order because "[w]hen a district court
remands a case to a state court, the district court
disassociates itself from the case entirely, retaining nothing
of the matter on the federal court's docket"); Thermtron, 423
U.S. at 351 (because the district court exceeded statutory
authority, mandamus review was not barred by § 1447(d));
Shives v. CSX Transp., Inc., 151 F.3d 164, 167-68 (4th Cir.
1998) (recognizing review of remand order either under final
judgment principle or under petition for writ of mandamus);
cf. Mangoid, 77 F.3d at 1453 (treating appeal of a remand
order as a petition for a writ of mandamus).
Il
This brings us to the merits of the district court's
rulings that the United States’ scope-of-employment
certification was erroneous and that, accordingly, the
substitution of itself as party defendant was also erroneous.
The district court reached these conclusions by applying the
law of North Carolina, where the alleged assault and battery
occurred, to the facts as asserted by Borneman in his
complaint and affidavit and determining that "McCauley's
tortious act was not committed in the scope of his
employment." The United States’ challenge to these rulings
presents two questions: (1) whether the district court
followed the proper procedure for reviewing a Westfall Act
certification and (2) whether the district court properly
applied the North Carolina law of respondeat superior --
questions that we now address.
App. 11
A
In Maron v. United States, 126 F.3d 317, 323 (4th
Cir. 1997), we stated that the plaintiff has the burden of
persuasion "to refute the certification of scope of
employment issued by the Attorney General and to prove by
a preponderance of the evidence that the defendants were not
acting within the scope of their employment." See also
Gutierrez de Martinez v. Drug Enforcement Administration,
111 F.3d 1148, 1153-55 (4th Cir. 1997). "If the plaintiff
presents persuasive evidence refuting the certification," the
burden shifts to the United States to "provide evidence and
analysis to support its conclusion that the torts occurred
within the scope of employment." Maron, 126 F.3d at 323;
see also Gutierrez, 111 F.3d at 1155. To carry its burden, the
plaintiff must submit "specific evidence or the forecast of
specific evidence that contradicts the Attorney General's
certification decision, not mere conclusory allegations and
speculation." Gutierrez, 111 F.3d at 1155.
Recognizing the "desirability of quickly resolving the
scope-of employment issue" because "immunity under the
Westfall Act, like other forms of absolute and qualified
immunity, 'is an immunity from suit rather than a mere
defense to liability," Gutierrez, 111 F.3d at 1154 (quoting
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)), we
emphasized that "the district court should remain cognizant
of the considerations weighing against protracted litigation
under the Westfall Act," id. at 1155. Nevertheless, we
recognized that this burden-shifting proof scheme would
sometimes make it advisable for the trial court to permit
limited discovery or conduct an evidentiary hearing to
resolve competing factual claims concerning the scope-of-
employment issue. At all stages of the process, it is for the
district court to weigh the sufficiency of the evidence, to
determine whether genuine issues of fact exist, and
ultimately to resolve these factual issues.
App. 12
Once any factual issues are resolved, the district court
must then proceed to "weigh the evidence on each side to
determine whether the certification should stand." Gutierrez,
111 F.3d at 1155. In making this ultimate determination, the
district court must apply the law of the state in which the
alleged tort occurred to ascertain whether the federal
employee was acting within the scope of his employment.
See Maron, 126 F.3d at 323-24; Jamison v. Wiley , 14 F.3d
222, 237 (4™ Cir. 1994).
In this case, the district court properly recognized that
Borneman presented evidence refuting the United States'
certification. The court referred to Borneman's complaint and
his affidavit, reciting Borneman's version of the facts. But
then, without discussing the facts presented by the United
States in McCauley's affidavit, the court simply concluded
that "McCauley's tortious act was not committed in the scope
of his employment." Because the court never acknowledged
the competing factual position presented by the United
States, it over-looked its obligation to resolve disputed
factual contentions. Rather, it accepted Borneman's contested
allegations as true, thus failing to hold him to his burden of
proof.
While the accounts of Borneman and McCauley are
consistent in some respects, they differ on the central issue of
this case. Borneman contends that McCauley pushed and
tripped him, causing him to fall. McCauley denies that any
physical contact occurred and claims that he had turned
around and was returning to his office at the time he heard
Borneman fall. Clearly, if McCauley's account of the
incident were believed, there would be no basis for asserting
that he had committed an intentional tort and no basis for
finding that he had acted outside the scope of his
employment. This critical discrepancy is therefore material
to the court's determination. Nonetheless, the district court
apparently took Borneman's allegations as true, rather than
requiring him to "present[ ] persuasive evidence," Maron,
126 F.3d at 323, in support of the allegations and allowing
App. 13
McCauley and the government to present contrary evidence,
which would then be weighed by the court.
B
Even if Borneman's version of events, as stated in his
complaint and alleged in his affidavit, is found to be
controlling, it is not clear that McCauley acted outside the
scope of his employment under North Carolina law. While it
is true, as the district court recognized, that under the North
Carolina law of respondeat superior, an intentional tort is
"rarely considered to be within the scope of an employee's
employment," Medlin v. Bass, 398 S.E.2d 460, 464 (N.C.
1990) (quotation marks and citation omitted), "rarely" does
not mean "never." And in North Carolina, the scope-of-
employment question is ordinarily one for the jury. See id. at
463; see also Robinson v. McAlhaney, 198 S.E. 647, 650
(N.C. 1938); Stanley v. Brooks, 436 S.E.2d 272, 274 (N.C.
Ct. App. 1993); Edwards v. Akion , 279 S.E.2d 894, 900
(N.C. Ct. App. 1981); Evington v. Forbes, 742 F.2d 834,
836-37 (4th Cir. 1984) (recognizing North Carolina rule that
close or doubtful scope-of-employment cases are submitted
to the jury).
North Carolina case law discloses numerous
instances in which the issue of whether an intentional assault
by an employee was within the scope of employment so as to
impose vicarious liability on the employer was determined to
be a jury question. See, e.g., Clemmons v. Life Ins. Co. of
Ga., 163 S.E.2d 761, 766 (N.C. 1968) (collection agent for
insurance company threatened plaintiff with pistol when she
was unable to pay premium); Munick v. Durham, 106 S.E.
665, 667 (N.C. 1921) (city employee assaulted plaintiff when
he paid portion of his water bill in pennies); Carawan v.
Tate, 280 S.E.2d 528, 531 (N.C. Ct. App. 1981), modified,
286 S.E.2d 99 (N.C. 1982) (parking lot attendant drew gun
on plaintiff after plaintiff refused to pay parking fee);
Edwards, 279 S.E.2d at 900 (sanitation worker grabbed and
App. 14
hit plaintiff after dispute about the manner in which the
_ worker collected plaintiff's refuse). The principle that should
govern this factual inquiry has been formulated in various
ways by the North Carolina courts: whether the employee
was "about his master's business or whether he stepped aside
from his employment to commit a wrong prompted by a
spirit of vindictiveness or to gratify his personal animosity or
to carry out an independent purpose of his own," see Medlin,
398 S.E.2d at 463 (quotation marks and citation omitted);
whether the employee acted "as a means or for the purpose
of performing the work he was employed to do" or whether
he "was advancing a completely personal objective," id. at
464; or whether an employee's act "was a means or method
of doing that which he was employed to do" or whether he
"departed, however briefly, from his duties in order to
accomplish a purpose of his own, which purpose was not
incidental to the work he was employed to do," Wegner v.
Delly-Land Delicatessen, Inc., 153 S.E.2d 804, 808 (N.C.
1967). We do not intend by this discussion to suggest any
particular result from the application of this principle to the
facts of this case. We merely observe that the inquiry is fact-
bound and may involve consideration of such factors as the
degree to which the physical confrontation in this case, if one
occurred, represented an escalation of a work-related dispute
and the degree to which it was motivated by personal
animosity.
c
Because we conclude that material factual issues
exist with respect to both the existence of the alleged assault
and its nature, we find that the district court's decision to
reject the United States' scope-of-employment certification
was premature. Borneman must be held to his burden of
proof, and the district court must resolve the material factual
issues. We therefore remand this case for proceedings
App. 15
consistent with the Maron/Gutierrez procedures outlined
above. |
Should the district court conclude, after resolving all
material facts, that McCauley was not acting within the
scope of his employment, McCauley must be resubstituted as
the defendant in this case. But the district court may not
thereafter remand the case to state court. Remand is
precluded by the Attorney General's removal under 28U.S.C.
§ 2679(d). Also the district court should not dismiss it.’
The district court's jurisdiction on removal authorizes it to try
the case even though the federal interest has been eliminated,
and at that stage in the proceedings, it should exercise its
jurisdiction and try the case, applying North Carolina law.
The court will have already become exposed to the merits of
the case in adjudicating the scope-of-federal-employment
question, and, for reasons of judicial economy, convenience,
and fairness to the parties, it should then proceed to final
judgment. See Gutierrez, 515 U.S. at 435-36 (plurality
opinion); cf United Mine Workers v. Gibbs, 383 U.S. 715,
725-26 (1966). If, on the other hand, the district court
concludes that McCauley was acting within the scope of his
employment, he enjoys absolute immunity and the action
becomes one against the United States under the Federal Tort
Claims Act.’
*We understand removal to be a forum selection procedure
that of itself confers no jurisdiction. Rather, it depends on an independent
ground for jurisdiction. Thus, when removal is conclusively allowed by
28 U.S.C. § 2679(d), remand is precluded, but the federal interest that
serves as the basis for federal jurisdiction may be independently
evaluated. In this case, federal jurisdiction is based on the fact that at the
time of removal, a federal employee ostensibly in the scope of his
employment with the United States was a party.
* The government moved for dismissal in the district court on
the dual grounds that Borneman failed to satisfy the FTCA's
administrative exhaustion requirement, see 28 U.S.C. § 2675(a), and that
his claim is not cognizable under the FTCA, which specifically excludes
any claim arising out of an assault or battery, § 28 U.S.C.§2680(h);
Talbert v. United States, 932 F.2d 1064, 1066 (4th Cir. 1991). However,
once the United States is substituted as defendant, the FTCA may not
App. 16
IV
In light of our ruling on the merits and our belief, in
any event, that the district court did not abuse its discretion
in denying Borneman his attorneys fees, we affirm the
district court's ruling in that regard.
V
In sum, we vacate the district court's remand order
and its rulings finding erroneous the United States’
certification and substitution. We affirm the district court's
order denying Borneman's motion for attorneys fees. And we
remand this case to the district court for further proceedings
in accordance with this opinion.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED
apply at all if, as the record seems to indicate, Borneman's injuries were
job-related injuries condensable under the Federal Employees
Compensation Act (FECA). See 5 U.S.C. § 8102. In that case, FECA
provides the exclusive remedy for a federal employee against the United
States. See 5 U.S.C. § 8116(c); Wallace v. United States, 669 F.2d 947,
951 (4th Cir. 1982); see also Ezekiel v. Michel, 66 F.3d 894, 898-900
(7th Cir. 1995) (Westfall Act substitution makes FECA exclusive
remedy); Sowell v. American Cyanamid Co., 888 F.2d 802, 804-05 (11th
Cir. 1989) (same).
App. 17
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
Entered October 8, 1998
No. 7:98-CV-97-F(1)
JOHN MICHAEL BORNEMAN, )
Plaintiff, )
v. ) ORDER
UNITED STATES OF AMERICA,)
Defendant. )
This matter is before the court upon the Defendant’s
motion to dismiss and the Plaintiff's motion to remand. Both
matters are ripe for disposition.
I.
This action was initiated by the Plaintiff, John
Michael Borneman, against Richard P. McCauley in the
Superior Court of New Hanover County, North Carolina, on
May 8, 1998. The action against McCauley was based on
the common-law torts of assault and battery. The Complaint
alleges that both the Plaintiff and McCauley were employees
at the Dogwood Annex Station Office of the United States
Postal Service on May 9, 1997. The Plaintiff worked as a
rural route carrier and as the local shop steward of the North
Carolina Rural Carriers’ Association; McCauley was acting
in the capacity of customer services manager. The Plaintiff
alleges that on May 9, 1997, he and McCauley argued and
McCauley assaulted and battered the Plaintiff. Specifically,
Plaintiff alleges that McCauley shouted obscenities at the
Plaintiff, followed the Plaintiff down a hallway screaming at
him, and then kicked the Plaintiff's feet out from under him
and pushed him from behind causing the Plaintiff to fall
App. 18
forward and severely injure his knee. McCauley has asserted
through affidavit to this court that, after the verbal dispute
between him and the Plaintiff, the Plaintiff was walking
backwards down the hallway and fell backwards injuring his
knee. :
On June 9, 1998, the Office of the United States
Attorney for the Eastern District of North Carolina filed a
Notice of Removal to this court, Notice of Substitution of the
Untied States as a party Defendant for McCauley, and a
motion to dismiss Plaintiffs Complaint pursuant to
FED.R.Civ.P. 12(b)(1) and (6). On July 13, 1998, the
Plaintiff responded to the Defendant’s motion to dismiss and
filed a motion to remand this matter.
II. The Parties Contentions
The Defendant United States argues that Richard
McCauley was acting within the scope of his employment on
May 9, 1997 when he allegedly assaulted and battered the
Plaintiff. Indeed, on June 9, 1998, pursuant to 28 U.S.C. §
2679 (d), the Attorney General, acting through the United
States Attorney for the Eastern District of North Carolina,
certified that McCauley was acting as an employee of the
United States at the time of the conduct alleged in the
Complaint. Because of such certification, the Defendant
asserts that the provisions of the Federal Tort Claims Act
(FTCA) apply to this action to render it as one against the
United States, immunizing McCauley from personal liability.
Furthermore, the Defendant argues that 28 U.S.C. § 2680
specifically excludes any claim arising out of an assault or
battery from those tortuous acts for which the United States
has allowed itself to be sued. Thus, because the United
States is immune from suit arising from an assault and
battery by a federal employee, Defendant argues that this
matter must be dismissed pursuant to Fed.R.Civ.P. 12(b)(1)
for lack of subject matter jurisdiction.
App. 19
Also, the United States argues that this court has no
jurisdiction over the Plaintiff's claim as a result of 28 U.S.C
§2675(a). Section 2675(a), in relevant part, states that:
[a]n action shall not be instituted upon a claim
against the United States for money damages
for injury of loss... caused by the negligent or
wrongful act or omission of any employee of
the Government while acting within the scope
of his office or employment, unless the
claimant shall have first presented the claim
to the appropriate Federal agency and his
claim shall have been finally denied by the
agency in writing and sent by certified or
registered mail.
28 U.S.C § 2675(a). The requirement of the filing of an
administrative claim pursuant by 28 U.S.C. § 2675(a) is
“jurisdictional and may not be waived.” Ahmed v. U.S., 30
F.3d 514 (4" Cir. 1994); Henderson v. United States, 785
F.2d 121, 123 (4 Cir. 1986). In this case, the Defendant
argues that the Plaintiff. has failed to exhaust his
administrative remedies, and this matter must be dismissed.
The Plaintiff seeks to have this matter remanded to
state court. The Plaintiff argues that certification of this
action under § 2676(d) by the Attorney General was
improper because McCauley was not acting within the scope
of his employment when he assaulted and battered the
Plaintiff. Thus, this action was not removable under 28
U.S.C. § 1441 because this court does not have subject
matter jurisdiction over Plaintiff's tort suit, and the case
should be remanded to state court pursuant to 29 U.S.C.
1447(c). Presumably because he argues that the provisions
of the FTCA are inapplicable to this matter because
McCauley was not acting within the , scope of his
employment, Plaintiff does not respond to Defendant’s
App. 20
‘
argument that he has failed to exhaust his administrative
remedies before bringing suit.
HT.
A. FTCA Immunity for Federal Employees and Certification
The FTCA, as amended by the Federal Employee
Liability Reform and Tort Compensation Act (FELRTCA),
codified at 28 U.S.C. §§ 1346(b), 2671-80, immunized a
federal employee from liability for his “negligent or
wrongful act[s] or omission{s]...while acting within the
scope of his office or employment...” 28 U.S.C. §
2679(b)(1). When a federal employee is sued, the United
States Attorney, acting on behalf of the Attorney General,
must certify whether that employee was in fact acting within
the scope of his or her employment at the time of the alleged
tortious act. See 28 U.S.C. 2679(d)(1).'_ Once this
certification has been made, the United States is substituted
as the sole defendant and all suits filed in state court are
removed to federal court; then the plaintiff's sole route for
recovery is the FTCA.
For many torts, the United States has not waived its
sovereign immunity through the FTCA. Therefore, even if a
‘Section 2679(d)(1) provides:
Upon certification by the Attorney General that the
defendant employee was acting within the scope of his
office or employment at the time of the incident out of
which the claim arose, any civil action or proceeding
commenced upon such claim in a United States district
court shall be deemed an action against the United
States under the provisions of this title and all
references thereto, and the United States shall be
substituted as the party defendant.
28 U.S.C. § 2679(d)(1). Section 2679(d)(2) provides for
removal of cases from state to federal court and substitution of
the United States as the party defendant in those cases. See id. §
2679(d)(2)
App. 21
claim is properly certified under § 2679(b)(1), the plaintiff
cannot recover from the federal government despite the
merits of his or her claim. See, e.g., 28 U.S.C. 2680(h)
(excluding claims arising from assault and battery); see also
Johnson v. Carter, 983 F.2d 1316, 1323 (4" Cir. 1993)
(dealing with defamation, for which the United States has
not waived its sovereign immunity); Brown v. Armstrong,
949 F.2d 1007, 1012 (8" Cir. 1991) (stating that the United
States cannot be sued for certain intentional torts). In cases
where the United States has not waived its immunity, the
United States must still be substituted and the individual
defendant still remains immune from suit if the tort occurred
within the scope of the federal employee’s employment. A
plaintiff, despite the seeming unfairness, cannot proceed
against the individual defendant. See United States v. Smith,
449 U.S. 160, 195 (1991); Johnson, 983 F.2d at 1323-24;
Brown, 949 F.2d at 1012-13.
B. Review of Certification Decision by Attorney General
At one time in this circuit, certification by the
Attorney General that an act was within a federal employee's
scope of employment was dispositive of the issue and not
judicially reviewable. See Johnson. 983 F.2d at 1324.
However in Gutierrez de Martinez v. Lamagno, 515 U.S. 417
(1995), the United States Supreme Court held that
certifications regarding the scope of employment were
reviewable by a district court. See id.at 426. When a
plaintiff challenges a scope of employment certification by
the Attorney General, he bears the burden of proving by a
preponderance of the evidence that the actions complained of
were not within the scope of employment. See Maron v.
United States, 126 F.3d 317, 322 (4™ Cir. 1997). A district
court reviews the certification de novo. See id. In order to
decide the certification issue, the district court must apply
the law of the state in which the tort occurred to determine if
the federal employee was acting within the scope of his
App. 22
employment. See id. at 324; Jamison v. Wiley, 14 F.3d 222,
237 (4 Cir. 1994).
D. Respondeat Superior Law in North Carolina
As a general rule, in North Carolina, an employer
will be liable for its agent’s wrongful act under the doctrine
of respondeat superior when the agent’s act is (1) expressly
authorized by the employer; (2) committed within the scope
of the agent’s employment and in furtherance of the
employer’s business--when the act comes within his implied
authority; or (3) ratified by the employer. See Medlin v.
Bass, 398 S.E.2d 460, 463-64 (N.C. 1990). In this case, the
parties do not contend that the United States expressly
authorized or ratified McCauley’s actions. Instead, the
parties focus on the second method an employer will be
liable for its employee’s wrongful act-whether the act was
within the scope of the employee's employment.
“To be within the scope of employment, an
employee, at the time of the incident, must be acting in
furtherance of the principal’s business and for the purpose of
accomplishing the duties of his employment.” Troxler v.
Charter Mandala Center, 365 S.E.2d 665, 668 (N.C. App.),
disc. review denied, 371 S.E.2d 284 (1988). “If an employee
departs from that purpose to accomplish a purpose of his
own, the principal is not [vicariously] liable.” /d.
Furthermore, “intentional tortious acts are rarely considered
to be within the scope of an employee’s employment.”
Brown v. Burlington Industries, Inc., 378 S.E.2d 232, 235
(N.C. App.), disc. review allowed, 384 S.E.2d 513, cert
granted, 387 S.E.2d 55 (1989), disc. review improvidently
allowed, 388 S.E.2d 769 (1990).
IV. In Scope of McCauley’s Employment?
This court must now determine if the Plaintiff met his
burden of showing, by a preponderance of the evidence, that
App. 23
McCauley’s behavior was not within the scope of his
employment, and therefore, that certification by the Attorney
General was in error. After reviewing the record, this court
concludes that Plaintiff has shown McCauley was not acting
within the scope of his employment when he allegedly
assaulted and bettered the Plaintiff.
Plaintiff's affidavit alleges that he and McCauley had
a verbal dispute on May 9, 1997. That the dispute occurred
in the Post Office and that it arose form a misunderstanding
about Plaintiff's activities as a union steward support the
Attorney General’s certification that McCauley was acting
within the scope of his employment on that day. However,
Plaintiff further alleges in his affidavit that after the verbal
altercation, McCauley became “livid” and began shouting
threatening obscenities at the Plaintiff. Then, Plaintiff
alleges that McCauley kicked Plaintiff's feet out from under
him simultaneously pushing him forward; and as a result of
McCauley’s kick and shove, the Plaintiff fell and severely
injured his knee. Plaintiff also has provided a letter form
Plaintiff's treating physician which indicates that the
“greatest likelihood of mechanism” of Plaintiff's injury was
a forward fall (which contradicts McCauley’s assertion that
the Plaintiff fell backwards while walking backwards down
the hall).
As the North Carolina courts have explained, an
intentional tort, such as assault and battery, rarely will be
within the scope of an employee’s employment. See Brown,
378 S.E.2d at 235. To be within the scope of employment,
an employee, at the time of the intentional tort must be
acting in furtherance of the principal’s business and for the
purpose of accomplishing the duties of his employment. See
Troxler, 365 S.E.2d at 668. For example, the employer of a
bouncer in a bar may in some circumstance be held
vicariously liable for an intentional tort committed by the
bouncer in removing a rowdy patron from the bar. In this
case, however, the United States has not suggested any
means by which McCauley’s alleged intentional tort
App. 24
é
|
f
furthered the Post Office’s business. Thus, this court finds
that McCauley’s tortuous act was not committed in the scope
of his employment.
Because this court finds that McCauley was not
acting within the scope of his employment when he allegedly
assaulted and battered the Plaintiff, the court concludes that
certification by the Attorney General was erroneous.
Accordingly, substitution of the United States as the
Defendant in this matter was also erroneous. Because this
court lacks jurisdiction over this common-law intentional tort
claim, removal of the action was improper. This matter,
therefore, is REMANDED to the Superior Court of New
Hanover County, North Carolina.
V. Conclusions
For the foregoing reasons, Plaintiff motion for
remand is ALLOWED, and this matter is REMANDED
pursuant to 28 U.S.C. 1447(c). The Defendant’s motion to
dismiss pursuant to FED.R.Civ.P. 12(b)(1) and (6), and 28
U.S.C. §§ 2680(h), 2765(a) is DENIED.
SO ORDERED.
This the 15" day of October, 1998.
\s\James C. Fox
James C. Fox
United States District Judge
App. 25
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
Entered January 06, 1999
No. 7:98-CV-97-F(1)
JOHN MICHAEL BORNEMAN, )
Plaintiff, )
v. ) ORDER
UNITED STATES OF AMERICA,)
Defendant. )
This matter is before the court upon the Defendant's
motion for reconsideration, pursuant to FED.R.Civ.P. 59(e),
of this court’s October 16, 1998 order. The Plaintiff has
responded to the motion for reconsideration, and the
Defendant has replied. The court also has considered a
supplemental memorandum filed by the Plaintiff, and a reply
thereto filed by the Government. The matter is ripe for
disposition.
I.
This action was initiated by the Plaintiff, John
Michael Borneman, against Richard P. McCauley in the
Superior Court of New Hanover County, North Carolina, on
May 8, 1998. The action against McCauley was based on
the common-law torts of assault and battery. The Complaint
alleges that both the Plaintiff and McCauley were employees
at the Dogwood Annex Station Office of the United States
Postal Service on May 9, 1997, and that McCauley assaulted
and battered the Plaintiff on that day. On June 9, 19989, the
Office of the United States Attorney for the Eastern District
of North Carolina filed a notice of Removal to this court,
Notice of Substitution of the United States as a party
App. 26
fMLP RL LOOM IY RESET ANG LEP SIGEA EPL SEG IES aug
EAA EOE GES IE OLE LOA IL AS SIE GOA SPIO SE
LPPTOGE TL LITLE LOI LE LIN SENG UGE OE TEAS A LOPES IH BBL AIOE IONS HL
Defendant for McCauley, and a motion to dismiss Plaintiff's
Complaint pursuant to FED.R.Civ.P. 12(b)(1) and (6). On
July 13, 1998, the Plaintiff responded to the Defendant’s
motion to dismiss and filed a motion to remand this matter.
The Defendant responded to the motion to remand, and the
parties filed affidavits of McCauley and the Plaintiff.
In their motion to dismiss, the Defendant United
States argued that Richard McCauley was acting within the
scope of his employment, when he allegedly assaulted and
battered the Plaintiff. The United States argued that pursuant
to 28 U.S.C. § 2679(d)-the Westfall Act-the Attorney
General, acting through the United States Attorney for the
Eastern District of North Carolina, certified that McCauley
was acting as an employee of the United States at the time of
the conduct alleged in the Complaint. Because of such
certification, the Defendant asserted that the provisions of
the Federal Tort Claims Act (FTCA) applied to this action to
render it as one against the United States, immunizing
McCauley from personal liability.
In his motion to remand, the Plaintiff argued that
certification of this action under § 2679(d) by the Attorney
General was improper because McCauley was not acting
within the scope of his employment under North Carolina
respondeat superior law when he allegedly assaulted and
battered the Plaintiff. Plaintiff argued that this action was
not removable under 28 U.S.C. § 1441 because this court did
not have subject matter jurisdiction over Plaintiff's common-
law tort suit. Thus, Plaintiff asserted that the case should be
remanded to state court pursuant to 28 U.S.C. § 1447(c).
This court agreed with the Plaintiff that McCauley was not
acting within the scope of his employment, and by order of
October 16, 1998, remanded this action to state court citing
28 U.S.C. 1447(c) and specifically finding that it did not
have subject matter jurisdiction over this matter.
The Defendant now seeks reconsideration of this
court’s order. Defendant requests that this court conduct an
evidentiary hearing before ruling on the scope of
App. 27
employment issue. In the alternative, the Defendant asks this
court to amend its findings and conclusions to hold that
McCauley was acting within the scope of his employment.
Citing 28 U.S.C. § 1447(d), the Plaintiff asserts that this
court does not have jurisdiction to reconsider its decision to
remand this action.
Il. Fep.R.Civ.P. 59(e) Standard
Although FED.R.Civ.P. 59(e) does not itself provide a
standard under which a district court may grant a motion to
alter or amend a judgment, the Court of Appeals for the
Fourth Circuit has recognized three grounds for amending an
earlier judgment: (1) to accommodate an intervening change
in controlling law; (2) to account for new evidence not
available at trial; or (3) to correct a clear error of law or
prevent manifest injustice. See EEOC v. Lockheed Martin
Corp., Aero & Naval Sys., 116 F.3d 110, 112 (4" Cir. 1997);
Collison v. Internat’l Chem. Workers Union, 34 F.3d 233,
236 (4" Cir. 1994); Hutchinson v. Staton, 994 F.2d 1076,
1081 (4™ Cir. 1993). The rule permits a district court to
correct its own errors, “sparing the parties and the appellate
courts the burden of unnecessary appellate proceedings.”
Russell v. Delco Remy Div. of Gen. Motors Corp., 51 F.3d
746, 749 (7™ Cir. 1995). However, FED.R.CIv.P. 59(e)
motions may not be used to raise arguments that could have
been raised prior to the issuance of the judgment or to argue
a case under a novel legal theory that the party had the
ability to address in the first instance. See Russell, 51 F.3d at
749: Simon v. United States, 891 F.2d 1154, 1159 (5™ Cir.
1990); see also, 11 WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE § 2810.1 at 127-28 (2d ed. 1995) (“The Rule
59(e) motion may not be used to relitigate old maters, or to
raise arguments or present evidence that could have been
raised prior to the entry of judgment.”). In general,
“reconsideration of a judgment after its entry is an
App. 28
Oe Ehs
BI DOESN AE A RRGEW f° NEADS RS SLY ah at i 62
qe a
extraordinary remedy which should be used sparingly.”
WRIGHT E TAL., supra, § 28101.1, at 124.
III. § 1447(d)
The Plaintiff argues that § 1447(d) bars this court
from considering Defendant’s motion to reconsider its
October 16, 1998, order. Section 1447(d) provides that “[a]n
order remanding a case to the State court from which it was
removed is not reviewable on appeal or otherwise,” subject
to an exception for civil rights cases that is not applicable
here. On its face, § 1447(d) appears to prevent review,
appellate or by this court on motion for reconsideration, of
all remand orders regardless of the basis. However, the
Supreme Court has declined to give § 1447(d) such a literal
meaning holding instead that it insulates only those remand
orders are based on grounds specified in 28 U.S.C. §
1447(c). See Thermtron Prods., Inc. v. Hermansdorfer, 423
U.S. 336 (1976). Section 1447(c) mentions only two ground
for remand: a defect in removal procedure and a lack of
subject matter jurisdiction in the federal court. The parties
have alleged no defect in removal procedure. Instead, the
parties focus on whether this court’s remand order was based
on a finding of a lack of subject matter jurisdiction.
Citing Jamison v. Wiley, 14 F.3d 222, 231-34 (4" Cir.
1994) and Mangold v. Analytic Services, Inc., 77 F.3d 1442
(4 Cir. 1996), the Defendant argues that this court has
authority to review its remand order. In Jamison, the Court
of Appeals for the Fourth Circuit held that it could review a
district court order remanding an action to state court
because the remand order could not “fairly be characterized
as one that was based on” a lack of subject matter
jurisdiction. Jamison, 14 F.3d at 232. The Fourth Circuit
noted that the district court’s remand order did not cite §
1447(c) or specifically mention “‘jurisdiction’-or lack
thereof-at all”. Jd. Additionally, the district court in
Jamison believed that the “source of its removal jurisdiction
App. 29
was § 1442(a)(1)”-not the Westfall Act. Unlike the Westfall
Act, § 1442(a)(1) does not condition the right to removal on
a finding that a defendant acted within the scope of his
federal employment; instead § 1442(a)(1) permits “[a}ny
officer of the United States, or any...person acting under
him,” to remove any action brought against him in a state
court “for any act under color of such office.” § 1442(a)(1)
(emphasis added). By raising a “colorable” federal defense
under § 1442(a)(1), a defendant-official transforms an
otherwise nonremovable state-law action into one that falls
under a federal court’s “arising under” jurisdiction. See
Jamison, 14 F.3d at 239 (citations omitted). Thus, even if
the federal court ultimately rejects the federal defense that
supported removal under § 1442(a)(1), the court retains
subject matter jurisdiction over the removed action. See id.
(noting that § 1442(a) “creates exception to ‘well-pleaded
complaint’ rule which makes officer’s assertion of federal
defense adequate to confer federal question jurisdiction.”).
Because the Jamison district court’s remand order did not
cite § 1447(c), did not mention jurisdiction, and assumed ihat
removal was based on § 1442(a)(1), the Fourth Circuit found
that § 1447(d)’s prohibitions were inapplicable and that it
had authority to review the district court’s remand order. See
id; se also Mangold, 77 F.3d at 1451 (finding that when
remand was not ordered pursuant to a motion to remand nor
on “an assumption that there was a ‘lack of jurisdiction’ so
that remand was compelled,” § 1447(d) did not bar review of
remand order).
This case is quite distinguishable from Jamison and
Mangold. Unlike Jamison and Mangold, this court cited §
1447(c) as the basis of its remand order. Furthermore, this
court specifically stated in its October 16, 1998, order:
“Because this court lacks jurisdiction over this common-law
tort claim, removal of the action was improper.” See Order,
at 8 (emphasis added). Furthermore, this court never
assumed, and the Defendant never argued, that removal of
this action was based on § 1442(a)(1), which would have
App. 30
PALE SAS SE tls NATE OO
conferred subject matter jurisdiction on the court despite the
court’s holding that McCauley was not acting within the
scope of his employment pursuant to the Westfall Act. To
the extent, if any, that the Defendant attempts to assert in its
reply brief to its motion to reconsider, that this court had
subject matter jurisdiction under over this action because of
1442(a)(1), the undersigned will not consider Defendant’s
untimely argument. See Russell, 51 F.3d at 749: Simon vy.
United States, 891 F.2d at 1159; 11 WRIGHT ET AL., §
2810.1, at 127-128.
Because § 1447(d) prevents this court from reviewing
a remand order based on § 1447(c) in which this court finds
it does not have subject matter jurisdiction, see Jamison, 14
F.3d at 231-33; Mitchell v. Carlson, 896 F.2d 128, 133 (e
Cir. 1990) (holding § 1447(d) applied to bar review of
remand order in Westfall Act case when district court
expressly stated that it lacked subject matter jurisdiction over
the removed action); Three J Farms vy. Alton Box Board Co.,
609 F.2d 112, 115-16 (4" Cir. 1979 (applying § 1447(d)
when district court’s order of remand “clearly determined
that there was an absence of federal jurisdiction”), the
Defendant’s motion for reconsideration is DENIED.
SO ORDERED.
This the 6" day of January, 1999.
\s\ James C. Fox
James C. Fox
United States District Judge
App. 31
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NORTH CAROLINA
SOUTHERN DIVISION
Entered March 03, 1999
No. 7:98-CV-97-F(1)
JOHN MICHAEL BORNEMAN, )
Plaintiff, )
Vv. ) ORDER
UNITED STATES OF AMERICA,)
j Defendant. )
This matter is before the court upon the Plaintiff's
motion for costs and attorneys’ fees pursuant to 28 U.S.C. §
1447(c) incurred as a result of the removal of this action.
The Defendant has responded, and the matter is ripe for
disposition.
The decision by a district court to award costs and
attorneys’ fees pursuant to 28 U.S.C. § 1447(c) is
discretionary.. See C. WRIGHT, A. MILLER & E. COOPER,
14A FEDERAL PRACTICE AND PROCEDURE § 3739 (3d ed.
1998). In this case, the court finds that the Defendant did not
act improvidently or in bad faith in removing this action.
Thus, this court refuses to award costs and attorney's fees to
the Plaintiff. See /TT Indus. Credit Co. v. Durango
Crushers, Inc., 832 F.2d 307, 308 (4" Cir. 1987) (affirming
award of sanctions when the removal petition was patently
without merit leading to the conclusion that removal was
undertaken in bad faith); Griffin v. Holmes, 843 F.Supp. 81
(E.D.N.C. 1993) (denying motion for costs and attorneys’
fees upon a finding of good faith removal); Marler v. Amoco
Oil Co., Inc., 793 F.Supp 656 (E.D.NC. 1992) (same).
Therefore, Plaintiff's motion for costs and attorneys’
fees hereby is DENIED.
App. 32
SO ORDERED.
This the 3" day of March, 1999.
\s\ James C. Fox
James C. Fox
United States District Judge
28 § 1447. Procedure after removal generally
(a) In any case removed from a State court, the
district court may issue all necessary orders and process to
bring before it all proper parties whether served by process
issued by the State court or otherwise.
(b) I may require the removing party to file with
its clerk copies of all records and proceedings in such State
court or may cause the same to be brought before it by writ
of certiorari issued to such State court.
(c) 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 appears that the district court lacks subject
matter jurisdiction, the case shall be remanded. An order
remanding the case may require payment of just costs and
any actual expenses, including attorney fees, incurred as a
result of the removal. A certified copy of the order of
remand shall be mailed by the clerk to the clerk of the State
court. The State court may thereupon proceed with such
case.
(d) An order remanding a case to the State court
from which it was removed is not reviewable on appeal or
otherwise, except that an order remanding a case to the State
court from which it was removed pursuant to section 1443 of
this title shall be reviewable by appeal or otherwise.
(e) If after removal the plaintiff seeks to join
additional defendants whose joinder would destroy subject
matter jurisdiction, the court may deny joinder, or permit
joinder and remand the action to the State court.
App. 34
LESPOE OD PRERO TE RT SRE A He
SATIRE Be I
28 §2679. Exclusiveness of remedy
(a) The authority of any federal agency to sue
and be sued in its own name shall not be construed to
authorize suits against such federal agency on claims which
are cognizable under section 1235(b) of this title, and
remedies provided by this title in such cases shall be
exclusive.
(b)(1) The remedy against the Untied States
provided by sections 1346(b) and 2672 of this title for injury
or loss of property, or personal injury or death arising or
resulting from the negligent or wrongful act or omission of
any employee of the Government while acting within the
scope of his office or employment is exclusive of any other
civil action or proceeding for money damages by reason of
the same subject matter against the employee whose act or
omission gave rise to the claim or against the estate of such
employee. Any other civil action or proceeding for money
damages arising out of or relating to the same subject matter
against the employee or the employee’s estate is precluded
without regard to when the act or omission occurred.
(2) Paragraph (1) does not extend or apply to a civil
action against an employee of the Government ---
(A) which is brought for a violation of the
Constitution of the United States, or
(B) Which is brought for a violation of a
statute of the United States under which
such action against an individual is
otherwise authorized.
(c) The Attorney General shall defend any civil
action or proceeding brought in any court against any
employee of the Government or his estate for any such
damage or injury. The employee against whom such civil
action or proceeding is brought shall deliver within such time
after date of service or knowledge of service as determined
by the Attorney General, all process served upon him or an
App. 35
attested true copy thereof to his immediate superior or to
whomever was designated by the head of his department to
receive such papers and such person shall promptly furnish
copies of the pleadings and process therein to the United
States attorney for the district embracing the place wherein
the proceeding is brought, to the Attorney General, and to
the head of his employing Federal agency.
(d)(1) Upon certification by the Attorney General
that the defendant employee was acting within the scope of
his office or employment at the time of the incident out of
which the claim arose, any civil action or proceeding
commenced upon such claim in a United States district court
shall be deemed an action against the United States under the
provisions of this title and all references thereto, and the
United Stctes shall be substituted as the party defendant.
(2) Upon certification by the Attorney General
that the defendant employee was acting with the scope of his
office or employment at the time of the incident out of which
the claim arose, any civil action or proceeding commenced
upon such claim in a State court shall be removed without
bond at any time before trial by the Attorney General to the
district court of the United States for the district and division
embracing the place in which the action or proceeding is
pending. Such action or proceeding shall be deemed to be
an action or proceeding brought against the United States
under the provisions of this title and all references thereto,
and the United States shall be substituted as the party
defendant. This certification of the Attorney General shall
conclusively establish scope of office or employment for
purposes or removal.
(3) In the event that the Attorney General has
refused to certify scope of office or employment under this
section, the employee may at any time before trial petition
the court to find and certify that the employee was acting
within the scope of his office or employment. Upon such
certification by the court, such action or proceeding shall be
App. 36
deemed to be an action or proceeding brought against the
United States under the provisions of this title and all
references thereto, and the United States shall be substituted
as the party defendant. A copy of the petition shall be served
upon the United States in accordance with the provisions of
Rule 4(d)(4) of the Federal Rules of Civil Procedure. In the
event the petition is filed in a civil action or proceeding
pending in State court, the action or proceeding may be
removed without bond by the Attorney General to the district
court of the United States for the district and division
embracing the place in which it is pending. If, in considering
the petition, the district court determines that the employee
was not acting within the scope of his office or employment,
the action or proceeding shall be remanded to the State court.
(4) Upon certification any action or proceeding
subject to paragraph (1), (2), or (3) shall proceed in the same
manner as any action against the United States filed pursuant
to section 1346(b) of this title and shall be subject to the
limitations and exceptions applicable to those actions.
(5) Whenever an action or proceeding in which
the United States is substituted as the party defendant under
this subsection is dismissed for failure first to present a claim
pursuant to section 2675(a) of this title, such claim shall be
deemed to be timely presented under section 2401(b) of this
title if ---
(A) the claim would have been timely had it
been filed on the date the underlying civil
action was commenced, and
(B) the claim is presented to the appropriate
Federal agency within 60 days after
dismissal of the civil action.
(e) The Attorney General may compromise or
settle any claim asserted in such civil action or proceeding in
the manner provided in section 2677, and with the same
effect.
App. 37
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.