Osborn v. Haley

BASICS OF FEDERAL JURISDICTION AND REMOVAL

Federal Jurisdiction, Generally

As courts of limited jurisdiction, the federal courts of the United States possess only as much power to decide matters as Congress gives them. That power must fall within the bounds of Article III of the Constitution. Subject matter jurisdiction defines what types of matters a court can hear. For example, Congress has given federal courts subject matter jurisdiction over cases involving citizens from different states as opposing parties, 28 U.S.C. § 1332 (diversity jurisdiction), cases arising “arising under the Constitution, laws, or treaties of the United States,” 28 U.S.C. § 1331 (federal question jurisdiction), and cases involving the United States as a party, 28 U.S.C. § 1346. The federal courts of appeals also have restrictions, such as 28 U.S.C. § 1291, which generally only allows appeals once there has been a “final decision” in the district court.

Removal Jurisdiction

If a case begins in state court, a defendant can remove it to a federal court if the federal court could have originally had jurisdiction. 28 U.S.C. § 1441. If at any time after removal, but before final judgment, the district court determines that it lacks subject matter jurisdiction, it must remand back to the state court. 28 U.S.C. § 1447(c). A federal court of appeals generally cannot review this type of remand. 28 U.S.C. § 1447(d).

Removal Under the Westfall Act

The Westfall Act provides for removal of tort actions against federal employees. If the United States Attorney General or his appointee, has certified that an employee was “acting within the scope of his office or employment at the time of the incident out of which the claim arose,” the case is removed, and the United States replaces the federal employee as the defendant. 28 U.S.C. § 2679(d)(2). The Westfall Act provides that, once the United States becomes the defendant, the action shall be the exclusive remedy and shall preclude any other actions against the United States or employee for the alleged actions involving that employee. 28 U.S.C. § 2679(b)(1). Federal jurisdiction is clearly established when the United States is substituted as the defendant. 28 U.S.C. § 1346. If the Attorney General refuses to certify, the employee can remove to a federal district court and petition that court to determine if the actions were within the scope of employment. 28 U.S.C. § 2679(d)(3). If the court determines the actions were within the scope, the United States is substituted as the defendant, and the action proceeds in federal court. Id. Under 28 U.S.C. § 2679(d)(3), if the court decides the actions were not within the scope, the district court must remand the case back to state court. Id.

The Supreme Court has held that, even where the Attorney General has certified an employee’s action as within the scope of employment, the district court may still review that certification. See Lamagno, 515 U.S. at 420 . If the court rejects the certification, then the United States is not substituted as defendant.

QUESTION ONE: CERTIFYING SCOPE OF EMPLOYMENT BY INCIDENT-DENIAL

Osborn’s Arguments

Osborn argues that the Westfall Act does not authorize the certification given in this case, where the United States certified that the employee was acting within the scope of employment but denied the alleged incident occurred, while conceding that if the incident did occur, it would have been outside the scope of employment. Brief for Petitioner at 9; Osborn , 422 F.3d at 361. Adopting the reasoning of the First Circuit in Wood v. United States, Osborn argues that an incident-denying certification is incompatible with the statutory assumptions in the Westfall Act that: (a) an incident occurred; and (b) the defendant employee was acting at that time. 995 F.2d 1122 (1st Cir. 1999); 28 U.S.C. § 2679(d)(2) ; Brief for Petitioner at 9. There is a split among the circuits on this issue, with the First Circuit supporting Osborn’s position and the majority of other circuits supporting the opposite. Brief for Petitioner at 19–21.

Osborn also argues that incident-denying certifications disturb the scheme of judicial review by turning review into a factual inquiry. The question of an employee’s immunity turns solely on the scope of employment issue, which is properly decided in a federal forum. See Lamagno, 515 U.S. at 426, 430–31. Osborn points out that the cases have regarded immunity as a purely legal issue that can only be decided with reference to undisputed facts or the plaintiff’s allegations. See Crawford-El v. Britton, 523 U.S. 574 (1998); Brief for Petitioner 27–28, 30–31. She argues that an incident-denying certification will turn review from a legal decision regarding the nature of the conduct into a factual inquiry of whether the incident occurred, essentially a decision on the merits. See e.g., Borneman v. United States, 213 F.3d 819, 827 (4th Cir. 2000), cert. denied, 531 U.S. 1070 (2001); Brief for Respondents Verdi at 4–5 n.2; Brief for Petitioner at 24, 26–27. If that occurred, the district court would essentially be making a decision on the merits in order to decide if it can make a decision on the merits, an odd situation and one that the Supreme Court would be reluctant to endorse. In this case, Osborn had not performed discovery, so the burden of proof imposed by the incident-denying certification would likely have been an impassible barrier. If Osborn was unable to meet the burden, the case would likely be dismissed with preclusive effects.

Haley’s Arguments

Haley defends the United States’ incident-denying certification by pointing to the Westfall Act and the differences in language between 28 U.S.C. § 2679(d)(2) and 28 U.S.C. § 2679(d)(3), which a number of courts of appeals have also seized upon. See, e.g., Heuton v. Anderson, 75 F.3d 357 (8th Cir. 1996); Melo v. Hafer, 13 F.3d 736, 746–47 (3d Cir. 1994); Kimbro v. Veltren, 30 F.3d 1501 (D.C. Cir. 1994), cert. denied, 515 U.S. 1145 (1995); Brief for Respondent Haley at 34. The provision used here, 28 U.S.C. § 2679(d)(2), requires that the employee is certified at the “time of the incident,” whereas 28 U.S.C. § 2679(d)(3) does not include such language. To give effect to the language, Haley argues that “time of the incident” intends a broader certification such as one based just on official connection. This would justify incident-denying certification. Brief for Respondent Haley at 34.

In addition, Haley analogizes heavily to federal officer immunity in 28 U.S.C. § 1442(a), which the Supreme Court has interpreted to allow federal officers to remove actions and present evidence that refutes the alleged conduct, so long as there is a colorable federal defense like immunity. See Jefferson County v. Acker, 527 U.S. 423 (1999); Brief for Respondent Haley at 29–30. It is sufficient for removal under 28 U.S.C. § 1442(a), Haley argues, if the relationship between the plaintiff and the federal officer derives solely from official duties, and a resolution of disputed facts is permitted in review of removal. Haley removed originally under both federal officer immunity and the Westfall Act, and argues that having different standards for certification under each would be illogical, given that they both work to immunize federal employees.

QUESTION TWO: REMAND POWER AFTER REVERSAL OF CERTIFICATION

Osborn maintains that, upon overruling the Attorney General’s certification and reversing the substitution of the United States as Defendant, the district court was required to remand under 28 U.S.C. § 1447(c), for a lack of subject matter jurisdiction. Osborn adds that there was no other basis for subject matter jurisdiction and that the incident-denying certification serves as an independent basis for remand since it constituted an improper removal.

Haley, along with a majority of courts of appeals, argues that the word “conclusively” in the final sentence of 28 U.S.C. § 2679(d)(2) strips the district court of its authority to remand. See Osborn, 422 F.3d at 365. The sentence reads: “This certification of the Attorney General shall conclusively establish scope of office or employment for purposes of removal.” 28 U.S.C. § 2679(d)(2). Haley points to another difference between 28 U.S.C. § 2679(d)(2) and 28 U.S.C. § 2679(d)(3) : while 28 U.S.C. § 2679(d)(3) requires remand if an employee’s petition to the court for certification is rejected, 28 U.S.C. § 2679(d)(2) has no such provision, instead stating the certification is conclusive. To give effect to the presumption that Congress intentionally includes or omits language, Haley argues that 28 U.S.C. § 2679(d)(2) must be read as prohibiting remand, or else the term “conclusively” would be robbed of any meaning. See Russello v. United States, 464 U.S. 16, 23 (1984); Brief for Respondent Haley at 44.

Osborn agrees that a certification, which is authorized by law, is conclusive. However, Osborn maintains that because an incident-denying certification is not authorized by the Westfall Act, the conclusive nature of certification does not apply here. Brief for Petitioner at 37–38. Osborn analogizes this to the colorable defense requirement for federal officer immunity, where the failure to present a colorable defense results in a remand. Brief for Petitioner at 40–41. Osborn also raises the constitutional concern that if the court keeps a case after overruling an incident-denying certification, the court will exceed its judicial power under Article III by deciding a case over which it lacks subject matter jurisdiction. Brief for Petitioner at 32.

Haley, in response, points to Lamagno, where all the Justices in the plurality and dissent agreed that the Westfall Act clearly indicates “that once a state tort action has been removed to a federal court by certification by the Attorney General, it may never be remanded to the state system.” 515 U.S. at 435, 440; Brief for Respondent Haley at 42–43. The plurality also rebuffs Article III concerns citing judicial economy and fairness as justifying the continued federal forum because the initial contest of certification involved federal interests, including the immunity of federal officer and the United States as a defendant. Id. at 436. Article III is a broad description of the power that Congress may bestow, and the main limitation is that a case must arise under a federal law at the outset of the case. See Merrell Dow Pharms. Inc. v. Thompson, 478 U.S. 804, 808 (1986). Osborn responds that since an incident-denying certification and its review will only involve facts and state law, there is no real federal element other than a potential party.

QUESTION THREE: JURISDICTION TO REVIEW THE REMAND ON APPEAL

Osborn argues that the Sixth Circuit lacked the jurisdiction to review the remand order under 28 U.S.C. § 1447(d), a near categorical bar against the review of remands. Brief for Petitioner at 10. Even if remand was an egregious error, it cannot be reviewed one of the bases of remand is specified in 28 U.S.C. § 1447(c), including lack of subject matter jurisdiction. See Kircher v. Putnam Funds Trust, 126 S.Ct. 2145, 2153 (2006). The remand order listed lack of subject matter jurisdiction as one of its grounds.

Haley attacks the applicability of 28 U.S.C. § 1447(d),arguing that since subject matter jurisdiction is supposed to be established at time of removal, the subsequent reversal of certification cannot affect jurisdiction based on the federal interests at the time of removal. See Poore v. American-Amicable Life Ins. Co. , 218 F.3d 1287, 1290 (11th Cir. 2000); Brief for Respondent Haley at 19. Haley argues that, even if 28 U.S.C. § 1447(d) did apply, there are exceptions that would allow review. First, Haley argues that the reversal of substitution and the remand order are reviewable under the Collateral Order Doctrine because both the reversal and the order affect Haley’s immunity. See Will v. Hallock, 126 S. Ct. 952, 958 (2006); Nixon v. Fitzgerald, 457 U.S. 731, 742 (1982); Brief for Respondent Haley at 13–14, 25; Brief for Respondents Verdi at 37. Second, under the exception in City of Waco v. U.S. Fid.. & Guar. Co., 293 U.S. 140 (1934), Haley argues that the reversal of substitution should be reviewable, as it precedes remand and denies the immunity which is only available in federal court. While the courts of appeals are unanimous about the reviewability of substitution reversals, it is not clear if they are reviewable after remand. Brief for Respondent Haley at 25–26; Brief for Respondents Verdi at 42–43.

Based on the Court’s principle of harmonizing related provisions, Haley argues that 28 U.S.C. § 2679(d)(2) with its “conclusive” language prohibits remand after Attorney General certification. Therefore, Haley argues, 28 U.S.C. § 1447 has no force because Congress could not have intended that a matter, which the district court did not have the power to remand, could be remanded and not appealed. See Aliota v. Graham, 984 F.2d 1350, (3d Cir. 1993) (Alito, J.), cert. denied, 510 U.S. 817 (1993); Brief for Respondent Haley at 20–21. If true, the judge who ordered the remand exceeded his statutory power. Accordingly, Haley claims that the Sixth Circuit had the power to issue a writ of mandamus since the district court exceeded its authority by remanding in the face of a statutory prohibition. See Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 351 (1976); Nasuti v. Scannell, 906 F.2d 802, 811 (1st Cir. 1990); Brief for Respondent Haley 15–16.