Dolenz v. Fahey

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
November 3, 2008
No. 07-10802
Summary Calendar Charles R. Fulbruge III
Clerk

BERNARD DOLENZ

Plaintiff-Appellant

v.

MEGAN J FAHEY; LANETTE CARDINALE; EVERREADY SERVICES;
UNITED STATES OF AMERICA

Defendants-Appellees

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:07-CV-477

Before WEINER, STEWERT, and CLEMENT, Circuit Judges.
PER CURIAM:*
Bernard J. Dolenz has applied for leave to proceed in forma pauperis (IFP)
in this appeal from the dismissal as res judicata of his claims against the United
States for wrongful attachment and conversion. Dolenz’s IFP motion is
construed as challenging the district court’s decision decertifying Dolenz’s IFP
status. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). “Under 28
U.S.C. § 1915(a), a federal court may refuse to certify an appeal for in forma

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
 No. 07-10802

pauperis status if it is not taken in good faith.” Howard v. King, 707 F.2d 215,
219-20 (5th Cir. 1983). Our inquiry into whether the appeal is taken in good
faith “is limited to whether the appeal involves legal points arguable on their
merits (and therefore not frivolous).” Id. at 220 (quotation marks omitted).
Although Dolenz is pro se, we have not construed his arguments liberally due to
his former status as a licensed attorney. See United States v. Dolenz, 2007 WL
2781878 at *2 (5th Cir. Sept. 24, 2007) (unpublished) (citing United States v.
Dolenz, 2000 WL 1239090 at *1 n.2 (5th Cir. Aug. 4, 2000) (unpublished)), cert.
dismissed, 128 S. Ct. 1302 (2008).
Dolenz does not contend in his brief that the district court erred in
determining that his claims are res judicata. Accordingly, he has waived any
issue that might have been raised with respect to this determination. See Grant
v. Cuellar, 59 F.3d 523, 524-25 (5th Cir. 1995); Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993). Arguments in Dolenz’s brief related to the merits of his
wrongful attachment and conversion claims have not been considered.
This case was removed to the federal district court and the United States
was substituted as party defendant in the place and stead of the original
defendants, Assistant United States Attorney Megan Fahey and Deputy United
States Marshal Lanette Cardinale, pursuant to the Federal Employees Liability
Reform and Tort Compensation Act of 1988 (the Westfall Act), 28 U.S.C. § 2679.
The United States Attorney certified that Fahey and Cardinale had acted within
the scope of their employment as federal employees. See § 2679(d)(2). Dolenz
contends that the district court erred in upholding the Attorney General’s
certification without a hearing. He also claims that removal of the case to the
district court was improper because the district court did not have original
jurisdiction and thus erred in refusing to remand the case to the state court.
These contentions are without merit.
Under the Westfall Act, federal employees have absolute immunity from
suit for common-law tort claims related to acts undertaken within the scope of

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their federal employment. § 2679(b)(1). When a federal employee is sued in
state court for wrongful or negligent acts, the Attorney General may certify that
the “employee was acting within the scope of his office or employment at the
time of the incident out of which the claim arose.” § 2679(d)(2). Upon such
certification, the action “shall be removed” to the United States District Court
and “shall be deemed to be an action or proceeding brought against the United
States.” Id. The United States is then substituted as the party defendant. Id.
The Attorney General’s certification establishes conclusively the scope of the
federal official’s employment for purposes of removal. Id.; see also Osborn v.
Haley, 549 U.S. 225, ___, 127 S. Ct. 881, 887-88 (2007).
The Attorney General’s certification is subject to judicial review in federal
court, see Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 420, 425 (1995), and
the district court is not precluded from “resubstituting the federal official as
defendant for purposes of trial if the court determines, postremoval, that the
Attorney General’s scope-of-employment certificate was incorrect.” Osborn, 127
S. Ct. at 894 (emphasis in original). In this case, however, the district court
dismissed the instant case prior to conducting such review. Therefore, contrary
to Dolenz’s argument, the district court never determined whether Fahey and
Cardinale had acted within the scope of their employment.
Under 28 U.S.C. § 1346(b)(1), the federal district courts:
have exclusive jurisdiction of civil actions on claims against the
United States, for money damages . . . for injury or loss of property
. . . 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, under circumstances where the United States,
if a private person, would be liable to the claimant in accordance
with the law of the place where the act or omission occurred.
Under the Westfall Act, “[t]he remedy against the United States provided by
[§] 1346(b) . . . 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.” § 2679(b)(1).

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Citing § 2679(b)(2), Dolenz argues that Fahey and Cardinale did not have
immunity under the Westfall Act because they violated his constitutional rights
to due process and against unreasonable searches and seizures. Dolenz did not
assert constitutional claims in his state court petition and therefore they are not
properly before us on appeal. Cf. Leverette v. Louisville Ladder Co., 183 F.3d
339, 342 (5th Cir. 1999) (issues not raised before district court may not be raised
for the first time on appeal). Moreover, the district court had not yet considered
whether Fahey and Cardinale were entitled to Westfall Act immunity at the
time it determined that Dolenz’s claims were res judicata.
Dollenz’s claim that Congress’s adoption of the Westfall Act constitutes an
unconstitutional delegation of powers to the executive branch has not been
adequately briefed, so we need not consider it. See Grant, 59 F.3d at 524-25.
Next, Dolenz contends that the Westfall Act deprives him of his right to
trial by jury. He also argues that the district court violated his right to a jury
trial with respect to the scope of Fahey’s and Cardinale’s employment by
dismissing his federal claims and in remanding the claims against Eveready to
the state courts. “The Seventh Amendment . . . right to jury trial in suits at
common law . . . does not apply to proceedings against the sovereign. . . . Thus,
at the time the district court reviews the Attorney General’s certification, the
plaintiff has no right to a jury trial.” Osborn, 127 S. Ct. at 900 (citation omitted).
Remand of the state claims against Eveready did not prevent Dolenz from
receiving a jury trial as to his claims against that non-federal defendant.
Then, Dolenz turns to the Nobility Clause, arguing that it is violated by
the grant of immunity to individual federal employees under the Westfall Act.
The extension of immunity to federal officials acting in the scope of their duties
does not involve a grant of a title of nobility. See U.S. CONST., art. I, § 9, cl. 8.
Finally, Dolenz urges us to find that the district court erred in failing to
grant his motion for summary judgment, which was predicated upon the failure
of Fahey and Cardinale to answer the petition and to respond to his requests for

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admissions. Under the Westfall Act, the United States was substituted as party
defendant for Fahey and Cardinale. § 2679(d)(1). No answer was due from the
United States because of its pending motion to dismiss. See FED. R. CIV. P.
12(a)(4). Although the district court did not expressly dispose of the motion for
summary judgment, the motion was rendered moot by the district court’s order
granting the motion to dismiss.
Because the appeal does not present legal points arguable on their merits,
the request for leave to proceed IFP on appeal is DENIED. See Howard, 707
F.2d at 220. Because Dolenz has not shown that he will present a nonfrivolous
issue, the appeal is DISMISSED. See 5TH CIR. R. 42.2; Baugh, 117 F.3d at 202
n.24.

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