Sherman Augustine v. LA Dept of Public Safety

Filing

UNPUBLISHED OPINION FILED. [10-30592 Dismissed for Lack of Jurisdiction] Judge: WED , Judge: JES , Judge: LHS. Mandate pull date is 12/22/2010 [10-30592]

Sherman Augustine CaseDept of Public Safety v. LA : 10-30592 Document: 00511308980

Page: 1 Date Filed: 12/01/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
December 1, 2010 N o . 10-30592 S u m m a r y Calendar Lyle W. Cayce Clerk

S H E R M A N J. AUGUSTINE, P la in t iff - Appellant v. L O U I S I A N A DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS, L o u is ia n a State Penitentiary, D e fe n d a n t - Appellee

A p p e a l from the United States District Court fo r the Middle District of Louisiana U S D C No. 3:10-CV-171

B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:* S h e r m a n J. Augustine appeals the district court's decision to retain ju r is d ic t io n over his federal claims. We lack jurisdiction over his appeal, and it is therefore DISMISSED. I n January 2009, Augustine, a former employee of the Louisiana State P e n it e n t ia r y in Angola, brought suit in state court against his former employer

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Dockets.Justia.com

Case: 10-30592 Document: 00511308980 Page: 2 Date Filed: 12/01/2010

No. 10-30592 a lle g in g violations of Louisiana employment and whistle-blower laws. In

F e b r u a r y 2010, he sought leave to amend his petition, proposing to add two c la im s under federal law. The state court granted leave to amend; Augustine file d the amended petition. S h o r t ly thereafter, the State removed the action to federal court and A u g u s t in e filed a motion to remand. The district court remanded Augustine's s t a t e law claims, but retained jurisdiction over the federal claims. Augustine file d a notice of appeal specifying that he "is only appealing the denial to remand t h e federal claims." " W e must raise the issue of our appellate jurisdiction sua sponte, if n e c e s s a r y ." Said v. Gonzales, 488 F.3d 668, 670-71 (5th Cir. 2007) (citation o m it t e d ). Augustine asserts that we have appellate jurisdiction "under Title 28 U n ite d States Code, Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure, a s an appeal from an opinion from a motion to remand in the United States D is t r ic t Court for the Middle District of Louisiana." N e it h e r of the cited authorities gives us jurisdiction over Augustine's a p p e a l. Our jurisdiction extends only to "appeals from . . . final decisions of the d is t r ic t courts of the United States." 28 U.S.C. § 1291. "[A]n order denying r e m a n d of a case removed to federal court is not a final order within the meaning o f 28 U.S.C. § 1291," and therefore "cannot be appealed unless certified by the d is t r ic t court in accordance with 28 U.S.C. § 1292(b)." Melancon v. Texaco, Inc., 6 5 9 F.2d 551, 552-53 (5th Cir. 1981) (citations omitted); see Aaron v. Nat'l Union F ir e Ins. Co., 876 F.2d 1157, 1160 (5th Cir. 1989). T h e district court's order retaining jurisdiction over Augustine's federal c la im s was not a final decision, and the district court did not certify the issue for o u r review. We therefore lack jurisdiction to consider Augustine's appeal. D IS M IS S E D .

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