Opposition Brief — Borneman v. United States

D | NOY 2 2 2000

No. 00-449 -

hee a NR LR AEEN SELES

Jn the Supreme Court of the United States

JOHN MICHAEL BORNEMAN, PETITIONER

v.

UNITED STATES OF AMERICA AND

RICHARD MCCAULEY

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

DAVID W. OGDEN

Assistant Attorney General

BARBARA L, HERWIG

JEFFRICA JENKINS LEE

Attorneys

Department of Justice

Washington, D.C, 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

The Westfall Act, 28 U.S.C. 2679, provides that in

certain tort actions against a federal employee, upon

certification by the Attorney General that the employee

was acting within the scope of his employment, the

United States shall be substituted as the party defen-

dant and the action shall be removed to federal court,

and for this purpose the Attorney General’s certifi-

cation shall conclusively establish scope of employment.

The questions presented for review are:

1. Whether an order rejecting the Attorney Gen-

eral’s certification and remanding to state court is

reviewable notwithstanding the ban on review of re-

mand orders contained in the general removal statute,

28 U.S.C. 1447(d); and

2. Whether the court of appeals applied the proper

standard in reviewing the district court’s denial of

attorney’s fees pursuant to 28 U.S.C. 1447(c) (1994 &

Supp. [IV 1998).

(I)

PE LS Ae on Oe ee eS a ee ahs ena | ee a we ee py ie ae 2A ae

TABLE OF CONTENTS

Page

Opinions below .. 1

PU IINIIEN cistticnshisensnininbvnitnenbsincitie’ 1

Statement 2

Argument 8

| ERE ER ane SRR ae COR 15

TABLE OF AUTHORITIES

Cases:

Aliota v. Graham, 984 F.2d 1350 (3d Cir.), cert.

denied, 510 U.S. 817 (1993) 6,7, 8,9, 11

Cohen v. Beneficial Indus. Loan Corp., 337 US.

STITUTE cect aihacichi iaksvidiceanttsndiiiahesstideces cine ied deptiadcdaitnacsinis 5

Flohr v. Mackovjak, 84 F.3d 386 (11th Cir. 1996) ...0....... i)

Garcia v. United States, 88 F.3d 318 (5th Cir.

NG at ER A RC ec 7,11

Gutierrez de Martinez v. DEA, 111 F.3d 1148 (4th

ROIs IUIINIEDD Gel icsccehdiiciciat ch denies hang snlananivedcliidisiosstintambétinaneniangideiasen 4

Guiterrez de Martinez v. Lamagno, 515 U.S. 417

SI UPIITI ideslsiniaieh al dhaich icin decbacnhadorsptlalalpthaiciiniinpuiintianescostncimsan 5, 6, 11

Haddon vy. United States, 68 F.3d 1420 (D.C. Cir.

ESERIES CREE EISEN DE Ae eT eo 7

Illinois Brick Co, v. Illinois, 431 U.S. 720

5p SCRE SESE SPS a see ee en 13

Jamison vy. Wiley 14 F.3d 222 (4th Cir. 1994) voce. 4,5

Kimbro vy. Velten, 30 F.3d 1501 (D.C. Cir. 1994),

cert. denied, 515 U.S. 1145 (1995) ........cccccscccsssssesecsecsseseees 8,9

Lowe, In re, 102 F.3d 731 (4th Cir. 1996) oocccccccecesecccceceseees 14

Mangold v. Analytic Serv., Inc., 77 F.3d 1442

(4th Cir. 1996) Geseinteioniashc innate binaaidbbaesin 4,5,6

Maron vy. United States, 126 F.3d 317 (4th Cir.

1997) 7

Mints v. Educational Testing Serv., 99 F.3d 1253

(3d Cir. 1996) iinkeslaiidabieibialeiaindinise 14

(IIT)

IV

Cases—Continued: Page

Miranti v. Lee, 3 F.3d 925 (Sth Cir. 1993) .....ccccsscsscssscrsees 14

Mitchell v. Carlson, 896 F.2d 128 (5th Cir. 1990) ........08 8,9

Moore v. Permanente, 981 F.2d 443 (9th Cir.

NED sssicciccicelscntainiintchghaichia Mhaditiadniiciimaheitatindiacien 14

Morgan Guar. Trust Co. v. Republic of Palau,

UE Fk BET Ce Ca, COD sassiisetetnnnivintee ences 14

Morris v. Bridgestone-Firestone, Inc., 985 F.2d

RE CO Ci BI vnitnteenticesatereessainiicinciiininiiinaanidaatiis 14

Nasuti v. Scannell, 906 F.2d 802 (1st Cir, 1990) oe 7

Neal vy. United States, 516 U.S, 284 (1996) .......cccesessesses 13

Patterson v. McLean Credit Union, 491 U.S. 164

CUTITID ss ceccissstsinstshestnsinaciirabisciiiesdccuntabdeehclabsaiahgiiiltasie dndaiaieilindidin 13

Quackenbush vy. Allstate Ins. Co., 517 US, 706

as aaa ei 6,9, 10

Shives v. CSX Transp., Inc., 151 F.3d 164

Cs I, BEI aicicisvcecicntetiecinnephicecsisithachieiiliabaabs 6

Thermtron Prods., Inc. v. Hermansdorfer,

GEE UE, SE CRO. stsrentestnssciniietnttiteitirnniensiniin 4, 6,9, 10

Things Remembered, Inc. v. Petrarca, 516 U.S. 124

IIIUED ccctvicnssiintn icssbidutehtisdinietesinictishaitncannebanasmsaaiaasesiadehalilins 12,13

Waco v. United States Fidelity & Guar. Co.,

SE UE. FO CED cceaierstninttntininiatniieniinitiaeisniaisabaitannaioias 5,8

Statutes:

Federal Employees Liability Reform and Tort

Compensation Act of 1988, Pub. L. No. 100-694,

BO es I siiniieaniniiciciniseiusiaaitaiiniieiphecipeaciticidaniisabsininn 2

Federal Tort Claims Act, 28 U.S.C. 2671 et seq.:

BU ESAS. TTR sccsinciciernenese 3

28 U.S.C. 2679(d) 3

28 U.S.C. 2679%(d)(2) passim

28 U.S.C. 2680(h) 3

Judicial Improvements and Access to Justice Act,

Pub. L. No. 100-702, § 1016(c)(1), 102 Stat. 4670 ............ 10

28 U.S.C. 1291 6,9

Statutes—Continued: Page

28 U.S.C. 1441 ....... = 3,6

BB OFLC. TOGID cisicseinintctenmmtits am 12

BS OA BOE itiestacsttnetiticens ; 3, 6

Be WA, SADE itcissicsemrnticiithasiiabibesncbia 4, 9, 10, 12, 13, 14

28 U.S.C, 1447(c) (1994 & Supp. 1V 1998) vc.cccscsseseseccveees 10

28 U.S.C, 1447(c) (1982 & Supp. LV 1987) c..ccccscccssssscseseses 10

BB STRAT; SOG TIED sviviseveinsasceinnsiniies 4,5, 6,8, 9, 10, 11, 12, 13, 14

BO TREN, BOD sentrsssivisessisciascntntintanimssibinnntanabdenatatbombintiiicas 12

ds

<<

Jn the Supreme Court of the United States

No. 00-449

JOHN MICHAEL BORNEMAN, PETITIONER

Vv.

UNITED STATES OF AMERICA AND

RICHARD MCCAULEY

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-17) is

reported at 213 F.3d 819. The orders of the district

court remanding the case to state court (Pet. App. 18-

25), denying reconsideration of its remand order (Pet.

App. 26-31), and denying the motion for attorney’s fees

(Pet. App. 32-33) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

May 30, 2000. The petition for a writ of certiorari was

filed on August 28, 2000. The jurisdiction of this Court

is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

1. In 1997, petitioner was a United States Postal

Service (USPS) rural mail carrier working in Wilming-

ton, North Carolina. He was also a local shop steward

for the North Carolina Rural Letter Carriers Associa-

tion. Pet. App. 3. Richard P. McCauley, a USPS man-

ager of customer services, was petitioner’s supervisor.

On May 9, 1997, during work hours, petitioner and

McCauley had a heated argument regarding peti-

tioner’s use of official time to conduct union business.

Ibid. Petitioner sustained a knee injury during the

course of the argument. /d. at 4.

2. Petitioner filed suit in state court seeking dam-

ages against McCauley for common law assault and

battery. In his complaint, petitioner alleged that

McCauley kicked and pushed him during their argu-

ment, thereby causing the knee injury. Pet. App. 3-4.

The United States Attorney for the Eastern District

of North Carolina determined that McCauley’s actions

were within the scope of his employment as a federal

employee at the time of the incident and filed in state

court a certification of scope of employment and notice

of substitution of the United States as the sole defen-

dant pursuant to the Westfall Act.’ Pet. App. 4.

! The Federal Employees Liability Reform and Tort Compen-

sation Act of 1988, Pub. L. No. 100-694, 102 Stat. 4563, commonly

known as the “Westfall Act,” provides in part (28 U.S.C.

2679(d)(2)):

Upon certification by the Attorney General that the defen-

dant 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 * * * commenced upon such claim in a

State court shall be removed * * * 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

3

See 28 U.S.C. 2679(d)(2). The United States Attorney

also filed a notice of removal to federal district court

(citing 28 U.S.C. 1441, 1442 and 2679(d)(2)) and a motion

to dismiss for lack of subject matter jurisdiction and

failure to state a claim.’ Ibid.

Petitioner opposed the removal and moved to remand

to state court, arguing that under North Carolina’s

respondeat superior case law McCauley was not acting

within the scope of his employment during the alleged

assault. Pet. App. 4. In reply, the government chal-

lenged petitioner’s version of the incident, attaching

McCauley’s declaration in which he stated “I never

touched [petitioner], did not push him, and presume he

tripped while walking backwards.” Ibid. Thereafter,

petitioner submitted his own affidavit and a letter from

his physician stating that petitioner’s injuries were

consistent with a “forward fall.” Id. at 5.

3. The district court ordered remand to state court.

The court concluded that “[petitioner] ha[{d] shown that

McCauley was not acting within the scope of his

employment when he allegedly assaulted and battered

the [petitioner].” Pet. App. 18, 24. The district court

therefore stated that substitution of the United States

as defendant was erroneous and that removal of the

action or proceeding is pending. Such action * * * shall be

deemed to be an action * * * brought against the United

States under the provisions of this title * * *, and the United

States shall be substituted as the party defendant.

* In a memorandum of law supporting the motion to dismiss,

the government argued that petitioner’s suit was barred because

he failed to file an administrative claim as required by the Federal

Tort Claims Act (FTCA), 28 U.S.C. 2675(a), and that, in any event,

claims arising out of assault and battery are specifically excepted

from the waiver of sovereign immunity contained in the FTCA.

See 28 U.S.C. 2680(h).

4

action Was improper because the federal court lacked

jurisdiction over a common-law intentional tort claim.

Id. at 25.

The government filed a motion for reconsideration of

the district court’s remand order, arguing that, because

the facts surrounding the nature of the incident be-

tween petitioner and McCauley were in dispute, the

court should have held an evidentiary hearing before

definitively ruling on the scope of employment issue.

Pet. App. 5. See Gutierrez de Martinez v. DEA, 111

F.3d 1148, 1155 (4th Cir. 1997); Jamison v. Wiley, 14

F.3d 222 (4th Cir. 1994). The United States also noted

that, under clear Fourth Circuit authority, remand to

state court was improper because Congress made the

Attorney General's determination of scope of employ-

ment conclusive for purposes of removal. See 28 U.S.C.

2679(d)(2); Jamison, 14 F.8d at 239; Mangold v.

Analytic Serv., Inc., 77 F.8d 1442, 1453 (1996). The dis-

trict court denied reconsideration, holding that it was

precluded from reconsidering its remand order by 28

U.S.C. 1447(d), which provides that_an order remanding

a case to the state court from dren removed is not

reviewable “on appeal or otherwise.” Pet. App. 30-31.

Following the district court’s denial of the govern-

ment’s motion for reconsideration, petitioner moved for

attorney’s fees and costs pursuant to 28 U.S.C. 1447(c¢).

The district court denied the request, noting that an

award of fees is discretionary, and that the government

did not act improvidently or in bad faith in removing

the action. Pet. App. 32.

* As discussed below, this statute has been construed to bar

review of orders remanding for lack of subject matter jurisdiction.

See Thermtron Prods., Inc. v. Hermansdofer, 423 U.S. 336, 346

(1976).

5

4.a. The government filed an appeal seeking review

of the resubstitution decision as a collateral order under

Cohen v. Beneficial Industrial Loan Corp., 337 U.S.

541 (1949) and, at the same time, filed a petition for a

writ of mandamus seeking an order compelling the

district court to vacate its remand order on the ground

that Section 2679(d)(2) made the Attorney General’s

certification conclusive for purposes of removal. Pet.

App. 6. The court of appeals considered both issues

together and affirmed im part, vacated in part and

remanded the case to the district court for further

proceedings. /d. at 1-17.

The appeals court first addressed the question

whether it had jurisdiction to review the district court’s

rulings, acknowledging that Section 1447(d) “would, at

first blush,” appear to preclude it from reviewing the

district court’s remand order. Pet. App. 7. The Fourth

Circuit noted, however, that the district court’s

conclusion that it lacked subject matter jurisdiction was

based on two antecedent decisions that were both

judicially reviewable and appealable: (1) that the scope

of employment certification by the United States was

erroneous; and (2) that the substitution of the United

States as defendant was erroneous. /d. at. 7-8 (citing

Guiterrez de Martinez v. Lamagno, 515 U.S. 417, 434

(1995); Jamison, 14 F.3d at 230 n.10, 233-234). The

court concluded that an otherwise reviewable ruling is

not barred from scrutiny “merely because it is a con-

stituent aspect of a remand order that would itself

appear to be insulated from review by § 1447(d).” Jd. at

8 (citing Waco v. United States Fidelity & Guar. Co.,

293 U.S. 140, 143 (1934); Mangold, 77 F.3d at 1446).

The court further concluded that because “these ante-

cedent components of the district court’s remand order

are reviewable, it follows that the remand order itself

6

lis} reviewable because its propriety depends on pre-

mises that are not statutorily barred from review,

rather than on whether the federal jurisdictional re-

quirements referenced in § 1447(c) are satisfied.” /bid.

(citing Mangold, 77 F.3d at 1450).

In the alternative, the Fourth Circuit held that the

remand order was subject to review because removal

by the United States was premised not only on Sections

1441 and 1442 of the general removal statute, but also

on the Westfall Act’s removal provision, 28 U.S.C.

2679(d)(2). Pet. App. 11. The appeals court explained

that the Attorney General’s scope of employment

certification under Section 2679(d)(2) “conclusively

establishes removal jurisdiction in the federal court, a

consequence that is not judicially reviewable.” Jd. at 9

(citing Gutierrez, 515 U.S. at 482; Aliota v. Graham, 984

F.2d 1350, 1857 (8d Cir.), cert. denied, 510 U.S. 817

(1993)).

The court of appeals thus held that Section 1447(d)

was no bar to either its review of the district court’s

ruling that the Attorney General’s scope of employment

certification was erroneous, or its review of the conse-

quent remand order that was entered in violation of

Section 2679(d)(2). Pet. App. 11. The Fourth Circuit

further ruled that it had authority to review such

rulings either as appealable decisions under 28 U.S.C.

1291 or on a petition for writ of mandamus. Pet. App.

11 (citing Quackenbush v. Allstate Ins. Co., 517 U.S.

706, 714 (1996); Thermtron Prods., 423 U.S. at 351;

Shives v. CSX Transp., Inc., 151 F.3d 164, 167-168 (4th

Cir. 1998); Mangold, 77 F.3d at 1458).

b. Turning to the merits of the district court’s

rulings, the Fourth Circuit concluded that the trial

court erred in its review of the Attorney General’s

scope of employment certification for purposes of

7

substituting the United States as defendant under the

Westfall Act. Pet. App. 11. The court of appeals held

that the district court neglected its obligation to resolve

the parties’ disputed factual contentions surrounding

the incident and failed to hold petitioner to his burden

of proof. Jd. at 13; see Maron v. United States, 126 F.3d

317, 323 (4th Cir. 1997) (plaintiff has burden of pront to

refute Attorney General’s certification).

The appea!s court also stated that, even accepting

petitioner’s version of the facts, “it is not clear that

[respondent] acted outside the scope of his employment

under North Carolina law.” Pet. App. 14. Accordingly,

the appeals court ordered that the case be remanded to

the district court for an evidentiary hearing.’ Jd. at 15-

16.

ce. Finally, the Fourth Circuit rejected petitioner’s

cross-appeal, affirming the district court’s denial of

petitioner’s request for attorney’s fees, “[i]n light of

[its} ruling on the merits.” Pet. App. 17. The appeals

court also noted that, “in any event, * * * the district

4 The court of appeals also stated that if on remand the district

court concludes, after resolving all material facts, that McCauley

was not acting within the scope of his employment, McCauley must

be resubstituted as the defendant. Pet. App. 16. Nevertheless, the

appeals court stressed, the case must remain in federal court, with

the trial court applying North Carolina law, because Section

2679(d)(2) precludes the district court from again remanding the

case to state court. /bid.; see Garcia v. United States, 88 F.3d 318,

324 (5th Cir. 1996); Aliota, 984 F.2d at 1356. But see Haddon v.

United States, 68 F.3d 1420, 1426 (D.C. Cir. 1995) (remand is

required if district court ultimately rejects Attorney General's

certification); Nasuti v. Scannell, 906 F.2d 802, 814 & n.17 (1st Cir.

1990) (same). The various rulings on the consequences of the

determination of scope of employment are not contained within the

questions presented for review in this petition, and are therefore

not before this Court.

8

court did not abuse its discretion” in denying the fee

request. /bid.

ARGUMENT

1. Petitioner mistakenly asserts (Pet. 13-16) that the

court of appeals’ decision in this case conflicts with the

interpretation of 1447(d) set forth in Waco v. United

States Fidelity & Guaranty Co., 293 U.S. 140 (1934). To

the contrary, the court of appeals’ decision in this case

explicitly followed Waco. — -

Section 1447(d) provides that “[aJn order remanding

a case to the State court from which it was removed is

not reviewable on appeal or otherwise.” 28 U.S.C.

1447(d). In Waco, this Court held that Section 1447(d)

is addressed only to the remand order itself and does

not bar appellate review of a ruling made in conjunction

with a remand, even if the ruling was the basis for the

decision to remand. 293 U.S. at 143. Thus Section

1447(d) did not bar review of a determination that a

party who supplied the basis for diversity jurisdiction

had been -improperly joined by cross-claims, even

though the order that dismissed the party also directed

a remand as a result; the dismissal decision was

analytically anterior to and separate from the decision

to remand, and review was not barred by Section

1447(d). See Waco, 293 US. at 143.

As several courts of appeals have held, the same

principle applies to a resubstitution order like the one

in this case. See Kimbro v. Velten, 30 F.3d 1561, 1503

(D.C. Cir. 1994), cert. denied, 515 U.S. 1145 (1995);

Alipta, 984 F.2d at 1353; Mitchell v. Carlson, 896 F.2d

128, 182-133 (5th Cir. 1990). The resubstitution issue

“logically precedes the question of remand,” Aliota, 984

F.2d at 1353, and it hinges upon appealable issues of

substantive law and is thus separable from the decision

9

to remand. Like the other courts of appeals that have

considered the question, the appeals court here con-

cluded that Section 1447(d) did not preclude its review

of the ruling antecedent to the district court’s remand

order—i.e., that McCauley did not act within the scope

of his employment and should therefore be resubsti-

tuted as the defendant.’ Pet. App. 11. Therefore, the

court of appeals reviewed the resubstitution order and

remanded the case to the district-court for an eviden-

tiary hearing on the scope of employment issue.

2. Petitioner is also mistaken in arguing (Pet. 7) that

the Fourth Circuit’s decision has “carved out a judi-

cially created exception” to 28 U.S.C. 1447(d)’s bar on

judicial review of remand orders based on lack of sub-

ject matter jurisdiction and conflicts with this Court’s

decision in Thermtron. Pet. 7.

As this Court explained in Thermtron, “Bection

1447(d) is not dispositive of the reviewability of remand

orders in and of itself.” 423 U.S. at 345. Rather, Sec-

tion 1447(d) must be read in pari materia with Section

1447(c), which in its present form authorizes remand

“{iJf at any time before final judgment it appears that

* The Fourth Circuit held that the resubstitution ruling was

“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).” Pet. App. 8. The court then concluded that

the consequent remand order, entered in violation of Section

‘2679(d)(2), was reviewable as a final judgment under 28 U.S.C.

1291 (see Quackenbush, 517 U.S. at 714), or by mandamus under

Thermtron, 423 U.S. at 351. Even if this second conclusion were in

error, however, review is unwarranted, as the Fourth Circuit first

correctly concluded that the resubstitution order was subject to

review, and appeal on this issue was proper under the collateral

order doctrine. See Flohr v. Mackovjak, 84 F.3d 386, 390 (11th

Cir. 1996); Kimbro, 30 F.3d at 1503; Aliota, 984 F.2d at 1353-1354;

Mitchell, 896 F.2d at 133.

10

the district court lacks subject matter jurisdiction.”

28 U.S.C. 1447(c) (1994 & Supp. IV 1998). In other

words, only remand orders based on grounds specified

in Section 1447(c) are shielded from review under Sec-

tion 1447(d), 423 U.S. at 345-346, and the prohibition of

appellate review in Section 1447(d) does not bar review

of remand orders entered on authority other than sub-

section (c), id. at 345-350. Concluding that the remand

order in Thermtron had “no warrant in the law,” the

Court ruled that the order could be reviewed by man-

damus.’ Id. at 353.

Although petitioner correctly notes (Pet. 5, 7) that

the district court’s remand order here cites Section

1447(c) and states the court’s view that it lacked subject

matter jurisdiction (Pet. App. 25), that does not end the

inquiry into whether Section 1447(d) bars review of the

remand order. As the appeals court stated, removal by

the United States in this case was based not only on the

provisions of the general removal statute, “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[,]

® At the time Thermtron was decided, Section 1447(c) author-

ized remand “[i]f at any time before final judgment it appears that

the case was removed improvidently and without jurisdiction.”

28 U.S.C. 1447(c) (1982 & Supp. V 1987). Section 1447(c) was

amended by Congress in 1988 to read as quoted in the text above.

See Judicial Improvements and Access to Justice Act, Pub. L. No.

100-702, § 1016(c)(1), 102 Stat. 4670. The 1988 amendment of Sec-

tion 1447(c) does not affect the provision’s meaning for present

purposes.

7 See also Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 715

(1996) (remand orders may be reviewable in certain instances as

“final” judgments under the collateral order doctrine).

1]

* * * [and] for purposes of removal, the certification is

‘conclusive[.]’” Jd. at 8 (quoting 28 U.S.C. 2679(d)(2)).

The appeals court, relying on this Court’s decision in

Guiterrez, explained that the Attorney General’s certi-

fication serves two purposes: “It forms the basis for

the United States to be substituted defendant, a conse-

quence that is subject to judicial review. * * * It also

conclusively establishes removal jurisdiction in the

federal court, a consequence that is not judicially

reviewable.” Pet. App. 9 (citing 515 U.S. at 432, 434).

Thus, the appeals court stated, in Section 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,” ibid.,

and Section 2679(d)(2) is in tension with Section

1447(d)’s apparent bar on review.

The appeals court concluded that the tension be-

tween 1447(d) and 2679(d) “can best be resolved by giv-

ing effect to the intent of each statute and preserving to

the district court its exclusive authority under § 1447(d)

* See Gutierrez, 515 U.S. at 433 n.10 (Westfall Act language

making certification “conclusiv[e] . . . for purposes of removal”

likely indicates Congress's decision “to foreclose needless shuttling

of a case from one court to another”) (plurality opinion); see also id.

at 440 (“there is nothing equivocal about the Act’s provision that

once a state tort action has been removed to a federal court after

certification by the Attorney General, it may never be remanded

to the state system”) (Souter, J., dissenting).

’ On this basis, the court of appeals determined that a district

court that attempts to review the propriety of the Attorney Gen-

eral’s removal in a Westfall Act case exceeds its statutory author-

ity. Pet. App. 9; accord Aliota, 984 F.2d at 1357 (“Since subject

matter jurisdiction has been conclusively established, there is no

jurisdictional question to be resolved by the district court.”); ef.

Garcia v. United States, 88 F.3d 318, 324 (5th Cir. 1996) (remand is

not permitted under Section 2679(d)(2)).

12

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.” Pet. App. 9. The

Fourth Circuit reasoned that:

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. at 10. The court of appeals was following Thermtron

when it concluded that, just as the district court in

Thermtron exceeded its statutorily defined powers in

ordering a remand based on a ground not authorized by

Section 1447(c), so too here the district court acted in

excess of its jurisdiction when it purported to review

the Attorney General’s determination to remove this

matter to federal court pursuant to Section 2679(d)(2).

In Things Remembered, Inc. v. Petrarca, 516 U.S.

124 (1995), this Court reasoned that Section 1447(d)

barred review of a remand order entered in a case

removed under the bankruptcy removal statute (28

U.S.C. 1452(a)) as well as the general removal statute

(28 U.S.C. 1441(a)), because Congress is assumed to be

“aware of the universality of the practice of denying

appellate review of remand orders when Congress

creates a new ground for removal.” 516 U.S. at 128 (in-

ternal quotation marks omitted). This Court suggested,

however, that “a clear statutory command to the con-

13

trary” in a particular removal statute would undermine

that assumption. /bid. The Fourth Circuit correctly

determined that Section 2679(d) contains just such a

clear statutory command. When Congress created a

new ground for removal in Section 2679(d)(2), it was

presumably aware of Section 1447(d)’s general rule.

Thus, Section 2679(d)(2)’s command that the Attorney

General’s certification shall be conclusive for purposes

of removal is an “express indication * * * that

Congress intended that statute to be the exclusive

provision governing removals and remands” in Westfall

Act cases. See id. at 129. Despite petitioner’s argu-

ments to the contrary, the district court’s reference to

Section 1447(c) is not dispositive here. The appeals

court properly determined that Section 1447(d) did not

bar judicial review of the remand order in this case.

3. Nor is there any merit to petitioner’s alternative

argument that, to the extent Thermtron “allowed ap-

pellate review of an order of remand for a reason not

set out in §1447(c),” that case was wrongly decided and

should be overruled. Pet. 23. Once this Court has

determined a statute’s meaning, it adheres to that rul-

ing under the doctrine of stare decisis. Neal v. United

States, 516 U.S. 284, 295 (1996). “[G]reat weight” is

given to stare decisis in the area of statutory construc-

tion because “Congress is free to change this Court’s

interpretation of its legislation.” Jd. at 295 (quoting

Illinois Brick Co. v. Illinois, 481 U.S. 720, 736 (1977)).

In this instance, there has been no intervening

development of the law that has “removed or weakened

the conceptual underpinnings from the prior decision,

* * * [nor has] the later law * * * rendered the

decision irreconcilable with competing legal doctrines

or policies.” Patterson v. McLean Credit Union, 491

U.S. 164, 173 (1989) (citations omitted). Thus this Court

14

should adhere to its holding in Thermtron that Section

1447(d) does not bar review of a remand order issued

outside the authority of Section 1447(c).

4. Finally, petitioner urges this Court to grant

certiorari to settle “a disagreement among the circuit

courts” regarding whether a party must show that the

removing party acted “improvidently” or in “bad faith”

in obtaining removal in order to recover attorney’s fees

pursuant to Section 1447(c). Pet. 24-25. That issue is

simply not presented in this case, however, nor is there

any conflict among the circuits on this issue. The

Fourth Circuit, consistent with the decisions of the

other circuit courts of appeals, has recognized that “bad

faith is not a prerequisite to an award of attorney’s fees

under § 1447(¢).” In re Lowe, 102 F.3d 731, 733 n.2 (4th

Cir. 1996); Mints v. Educational Testing Serv., 99 F.3d

1253 (3d Cir. 1996); Morris v. Bridgestone-Firestone,

Tne., 985 F.2d 288 (6th Cir. 1993); Miranti v. Lee, 3 F.3d

925 (5th Cir. 1993); Moore v. Permanente, 981 F.2d 443

(9th Cir. 1992); Morgan Guar. Trust Co. v. Republic of

Palau, 971 F.2d 917 (2d Cir. 1992)). Moreover, the

Fourth Circuit did not hold in this case that such a

showing was required under Section 1447(c). Rather, in

its one-sentence discussion of this issue, the appeals

court stated: “{iJ]n light of our ruling on the merits and

our belief, in any event, that the district court did not

abuse its discretion in denying [petitioner] his

attorney’s fees, we affirm the district court’s ruling in

that regard.” Pet. App. 17. Hence, this case does not

present the question whether a showing of bad faith is

required under Section 1447(c).

15

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

DAVID W. OGDEN

Assistant Attorney General

BARBARA L. HERWIG

JEFFRICA JENKINS LEE

Attorneys

NOVEMBER 2000