Dillon v. Mississippi Military Department

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

_____________________

No. 93-7408
_____________________

GRACE FORD DILLON, Conservator of the
Person and Estate of Ronald S. Kelly,

Plaintiff-Appellant,

VERSUS

STATE OF MISSISSIPPI MILITARY DEPARTMENT,
ARMY NATIONAL GUARD AND/OR MISSISSIPPI
NATIONAL GUARD, ET AL.,

Defendants,

UNITED STATES OF AMERICA,

Defendant-Appellee.

*****************************************************************

CYNTHIA M. HOLLOWAY, Individually and as
Mother and Next Friend of the Minors
Christina Marie Byrd, Candice Lynn Byrd,

Plaintiff-Appellant,

VERSUS

STATE OF MISSISSIPPI MILITARY DEPARTMENT,
ARMY NATIONAL GUARD AND/OR MISSISSIPPI
NATIONAL GUARD, ET AL.,

Defendants,

UNITED STATES OF AMERICA,

Defendant-Appellee.
____________________________________________________

Appeal from the United States District Court
for the Southern District of Mississippi

_____________________________________________________

(June 13, 1994)
Before JOHNSON, BARKSDALE and DeMOSS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

The threshold issue is one of first impression: the scope of

removal under the Westfall Act -- whether, when putative employees

of the United States are not the only defendants, the action is

removed, as opposed to only those claims against the United States.

For this appeal from, inter alia, the dismissal of the United

States as a defendant, but with other defendants remaining, we

conclude that we lack appellate jurisdiction, because a final

judgment was not entered. Therefore, we DISMISS.

I.

During a Mississippi National Guard training exercise in 1990,

one Guard member was severely injured and another killed. As a

result, two tort actions were filed in state court against several

individuals (the superior officers during the exercise), the State

of Mississippi Military Department Army National Guard, and the

Mississippi National Guard.

Pursuant to 28 U.S.C. § 2679, the Attorney General of the

United States certified that, at the time of the incident, the

individual defendants were acting within the scope of their United

States' employment.1 Accordingly, the actions were removed to

1
The Federal Tort Claims Act (FTCA), as amended by the Federal
Employees Liability Reform and Tort Compensation Act of 1988 (the
Westfall Act), 28 U.S.C. § 2679 (1988), provides for removal to
federal court of actions for monetary damages against federal
employees, upon certification by the Attorney General that the
employee was acting within the scope of his employment when the
cause of action arose. In such cases, the United States is
substituted for the employee. Section 2679 provides in relevant
part:

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district court (and consolidated), and the United States

substituted for the individuals. 28 U.S.C. § 2679(d)(2), quoted in

note 1, supra. The individual defendants were dismissed.

The United States moved for dismissal, contending that the

action was barred by Feres v. United States, 340 U.S. 135 (1950),

clarified by and reaffirmed in United States v. Johnson, 481 U.S.

681 (1987) (precluding government liability for torts arising out

of activities incident to military service). Plaintiffs did not

respond to that motion, except with a remand motion. Remand was

denied on May 25, 1993, Dillon v. State, 827 F.Supp. 1258 (S.D.

(b)(1) The remedy against the United States
provided by [the FTCA] for ... 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.... Any other civil action or proceeding for
damages arising out of or relating to the same
subject matter ... is precluded without regard to
when the act or omission occurred.

. . .

(d)(2) 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 State court shall be removed without
bond at any time before trial to the [appropriate
federal district court]. Such action or proceeding
shall be deemed to be an action or proceeding
brought against the United States ... 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 of removal.

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Miss. 1993)2; the motion to dismiss was granted approximately two

weeks later, on June 9.

Plaintiffs appealed these orders; but, the district court had

neither adjudicated the claims against the state defendants, nor

designated the June 9 dismissal a final judgment pursuant to Fed.

R. Civ. P. 54(b) (when district court so designates, permitting

entry of final judgment even though disposing of less than all

claims); see Kelly v. Lee's Old-Fashioned Hamburgers, Inc., 908

F.2d 1218, 1219-22 (5th Cir. 1990) (en banc) (standard for Rule

54(b) designation).

II.

The United States asserts correctly that, because there was no

final judgment, appellate jurisdiction is lacking. See Fed. R.

Civ. P. 54(b)3; e.g., Thompson v. Betts, 754 F.2d 1243, 1245 (5th

2
The remand motion was based on plaintiffs' assertion that,
regardless of the Attorney General's scope-of-employment
certification, the individual defendants were not federal
employees, or, in the alternative, were not acting within the scope
of their federal employment at the time of the incident. Because
jurisdiction is wanting, we do not reach this issue (or the
discovery issue concerning it). See this court's very recent
opinion in Garcia v. United States, No. 92-8490, slip op. 4579 (5th
Cir. June 10, 1994) (discussing conclusiveness of Attorney
General's scope-of-employment certification).
3
Fed. R. Civ. P. 54(b) provides:

Judgment Upon Multiple Claims or Involving
Multiple Parties. When more than one claim for
relief is presented in an action ... or when
multiple parties are involved, the court may direct
the entry of a final judgment as to one or more but
fewer than all of the claims or parties only upon
an express determination that there is no just
reason for delay and upon an express direction for
the entry of judgment. In the absence of such
determination and direction, any order or other

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Cir. 1985) (citing 28 U.S.C. § 1291) (absent Rule 54(b)

designation, "a partial disposition of a multi-claim or multi-party

action does not qualify as a final decision ... and is ordinarily

an unappealable interlocutory order") (internal citations and

quotations omitted), cited in Kelly, 908 F.2d at 1220. Ordinarily,

a judgment is not final for purposes of appeal unless it "ends the

litigation on the merits and leaves nothing for the court to do but

execute the judgment." Way v. Reliance Ins. Co., 815 F.2d 1033

(5th Cir. 1987) (citing cases; internal quotation marks and

citation omitted) (judgment finding defendant liable, but not

awarding damages pending arbitration, was not a final order for

purposes of § 1291).

Most surprisingly (read amazingly), plaintiffs did not file a

reply brief in response to the government's jurisdictional point.4

In their original brief, they asserted that "the United States of

America removed this matter, as to the individual named defendants

only". (Emphasis in original.) We infer from this, and from oral

argument on this point, that plaintiffs' position is as follows:

form of decision, however designated, which
adjudicates fewer than all the claims or the rights
and liabilities of fewer than all the parties shall
not terminate the action as to any of the claims or
parties, and the order or other form of decision is
subject to revision at any time before the entry of
judgment adjudicating all the claims and the rights
and liabilities of all the parties.
4
Needless to say, a reply brief responding to this contention
should have been filed. This is a classic instance for when such
a brief is called for -- to respond to a new point raised by an
appellee. And, where, as here, the point concerns jurisdiction,
the call for the reply is all the louder; the need, all the
greater.

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only the claims against the individual defendants (for whom the

United States was substituted) were removed under the Westfall Act,

with the state defendants remaining in state court; therefore, the

order dismissing the United States was a final, appealable order,

because it adjudicated all claims as to all parties before the

district court.5

The scope of removal pursuant to § 2679(d)(2) appears to be an

issue of first impression. But, the plain language of § 2679

quickly and easily disposes of the issue. The statute states that

the "action or proceeding ... shall be removed". 28 U.S.C. §

2679(d)(2). It does not speak of claims or federally linked

defendants; it speaks of the entire action.6 (Perhaps there are no

cases on the scope issue because it is a non-issue.)7

5
Although the district court dismissed only the United States,
the docket sheet states that the case has been "closed", despite a
later motion to dismiss by the state defendants (apparently not
ruled upon).
6
See Kirkland v. District of Columbia, 789 F.Supp. 3, 4 (D.D.C.
1992), a tort action against the District of Columbia, its mayor
and police chief, and several FBI agents. The United States
removed the action, pursuant to § 2679(d)(2), after certifying that
one of the FBI agents had been acting within the course and scope
of his employment. Id. at 4. Upon the United States' motion to
dismiss being granted, and without discussing the scope of removal
under § 2679(d)(2), the district court remanded "the remaining
case" (the claims against the District of Columbia, mayor and
police chief) to Superior Court. Id. at 5.
7
That the Westfall Act removal was for the entire action, not
merely for the claims for which the United States was substituted
as a defendant, is reflected by the district court record. The
Notice of Removal and Substitution refers to the removal of "[t]he
above-captioned action". The removal order, similarly, refers to
"the removal of this action" and provides that the "action is
removed" to district court. After removal, the district court
ordered that the United States be substituted as the "sole
defendant" for the individual defendants. This order resulted in

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 Along that line, our court has held that removal under the

general removal statute, 28 U.S.C. § 1441, and other similar

statutes, removes the action. E.g., Arango v. Guzman Travel

Advisors Corp., 621 F.2d 1371, 1376 (5th Cir. 1980) (§ 1441(d)

removal is for entire action, "not merely those aspects involving

discrete federal claims or parties"); accord, Nolan v. Boeing Co.,

919 F.2d 1058, 1065 & n.9 (5th Cir. 1990) (citing cases) (term

"action", rather than "claims", used in removal statutes, e.g. 28

U.S.C. § 1441(a)(1), (d), 28 U.S.C. § 2679(d) (prior to Westfall

Act amendment), indicates intent to exercise federal jurisdiction

over "entire case", not merely portions of it), cert. denied, 499

U.S. 962 (1991).

In support of its holding, Arango discussed similar language

in other removal provisions -- which have been similarly construed

to require removal of the entire action. See Arango, 621 F.2d

1371, passim (citing and construing 28 U.S.C. § 1442(a)(1) (removal

by federal officers); 28 U.S.C. § 1819(d) (removal by Federal

Deposit Insurance Co.); and 28 U.S.C. § 2679(d) (prior to Westfall

the (apparently inadvertent) deletion, from the caption of the
consolidated district court action, of all other defendants,
including the state defendants. The United States moved to correct
the style of the consolidated action, to reflect that the United
States had been substituted only for the individual defendants,
whereas the state defendants had not been dismissed. The motion
was granted, without opposition.

Plaintiffs' assertion that only claims against the United
States were removed did not surface until their response to the
state defendants' motion to dismiss, filed after the United States
had been dismissed. Nor did plaintiffs pursue their claims against
the state defendants in state court, although they assert that
those claims remained there.

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Act amendment)); Spencer v. New Orleans Levee Bd., 737 F.2d 435,

437 (5th Cir. 1984) (construing 28 U.S.C. § 1441(a)(1) to mandate

removal of "entire case"). For these other removal provisions, as

with § 1441(d), "it is the action -- embracing all defendants --

that is to be transferred to federal court." Arango, 621 F.2d at

1375 (emphasis in original); Nolan, 919 F.2d at 1066 ("In federal

practice, the terms `case' and `action' refer to the same thing,

i.e., the entirety of a civil proceeding....") (citing Fed. R. Civ.

P. 2).8

The United States' motion to dismiss was made, and granted,

only on its behalf; it is axiomatic that the state defendants

remain. Because there has not been a final judgment, under Rule

54(b) or otherwise, we lack jurisdiction.

III.

For the foregoing reasons, the appeal is

DISMISSED.

8
Because the plain language of § 2679 disposes of the scope of
removal question (quickly and easily), we need not look to other
guideposts, such as legislative history, or the obvious judicial
efficiency and economy preserved by removal of the entire action.
Arango, 621 F.2d at 1375-76 & n.6, discusses those points for §
1441(d).

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