# Opposition Brief — Borneman v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2001
- **Citation:** 531 U.S. 1070

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1607%3A2. Public record. Not legal advice.