Kebaish v. Paik et al
Filing
15
MEMORANDUM OPINION re: 9 Motion To Remand To Fairfax Circuit Court by Adel S. Kebaish. (See Memorandum Opinion For Details). Signed by District Judge T. S. Ellis, III on 8/4/10. (nhall)
-TCB Kebaish v. Paik et al
Doc. 15
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Alexandria Division ADEL S. KEBAISH, Plaintiff, v. ) ) )
r
- 4 2010
ALEX/,:.:
No. l:10cv829
INOVA HEALTH CARE SERVICES, et al., )
)
Defendants.
) MEMORANDUM OPINION
This case presents the question whether a civil action alleging only state claims and
removed to federal court pursuant to the Westfall Act1 may be remanded to state court after the
Attorney General's certification of certain named defendants, resulting in the substitution and subsequent dismissal of the United States, and leaving no federal defendants or claims. This
question, recently the subject of a circuit split, has now been resolved by the Supreme Court with the result that remand is foreclosed in this case. Accordingly, plaintiffs motion to remand must be denied. As the factual and legal contentions are adequately set forth in the existing record,
oral argument is dispensed with, as it would not aid the decisional process.
I.
Plaintiff, an orthopedic surgeon, is a resident and citizen of Virginia, and until his recent termination was employed by defendant Inova Health Care Services. Following his termination,
plaintiff filed a complaint in the Fairfax County Circuit Court alleging a variety of state law
claims against fourteen defendants, all but two of whom are citizens of Virginia. The nine state
law claims are, as follows: (I) defamation and defamation per se; (II) breach of contract; (III)
1 Federal Employees Liability Reform and Tort Compensation Act of 1988 (Westfall
Act), Pub. L. No. 100-694,102 Stat. 4563 (codified at 28 U.S.C. § 2679).
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tortious interference with existing contract and/or business relationships and business expectancy; (IV) common law conspiracy; (V) statutory conspiracy to injure, in violation of
Virginia Code § 18.2-499 and -500; (VI) common law wrongful termination of employment, in violation of public policy embodied in the Virginia Consumer Protection Act; (VII) common law
wrongful termination of employment, in violation of public policy embodied in the Virginia
Antitrust Act; (VIII) common law wrongful termination of employment, in violation of public
policy embodied in the Virginia Fraud Against Taxpayers Act; and (IX) unjust enrichment.2 All
of these claims arise under Virginia law. On July 27,2010, defendants Scott B. Shawen and John Paik, by counsel for the United
States, removed this matter to federal court on the ground that these defendants had been
certified by the U.S. Attorney for the Eastern District of Virginia3 as acting within the scope of
their employment at the time of the events alleged in plaintiffs complaint. See 28 U.S.C. § 2679(d)(2) (requiring removal upon certification and stating that "certification ... shall
conclusively establish scope of office or employment for purposes of removal"). Consistent with this certification, the United States filed a notice of substitution under the Westfall Act,
substituting the United States as a defendant in place of defendants Shawen and Paik. See id. §
2679(d)(l) ("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 ... the United States shall be substituted as the party defendant."). Plaintiff did not contest
2 In his brief in support, plaintiff lists an additional Count for negligent retention. Yet,
this Count does not appear anywhere in the complaint.
3 Under 28 C.F.R. § 15.4, the Attorney General's certification may be issued by the U.S.
Attorney for the district in which the civil action or proceeding is brought.
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the certification and substitution, and instead filed a stipulation of dismissal as to the United
States pursuant to Rule 41(a)(l)(A), Fed. R. Civ. P. Accordingly, by Order dated July 30, 2010,
(i) the United States was substituted as a defendant in place of Shawen and Paik, (ii) Shawen and Paik were dismissed as defendants, and (iii) the United States was dismissed as a defendant
pursuant to plaintiffs stipulation. See Kebaish v. Inova Health Care Servs., No. 1:10cv829 (E.D. Va. July 30,2010) (Order). Shortly thereafter, plaintiff filed a motion to remand the matter to
state court, as no federal defendants or claims remain in this case.
II.
Plaintiff seeks a remand pursuant to 28 U.S.C. § 1447(c), which states that if, following
removal to federal court, "it appears that the district court lacks subject matter jurisdiction, the
case shall be remanded" to the state court. Yet, it is well-settled that remand under § 1447(c) is appropriate only where, as is not the case here, the movant identifies a defect in the removal
procedure or a lack of subject matter jurisdiction in the federal court. See Jamison v. Wiley, 14 F.3d 222, 238-39 (4th Cir. 1994) (discussing remand principles where case is removed under § 1442(a)(l)). Significantly, courts have recognized that "'the jurisdiction of the federal courts
over a properly removed action will not be defeated by later developments in the suit.'" Id. at
239 (quoting 14A C. Wright, A. Miller, & E. Cooper, Federal Practice & Procedure:
Jurisdiction 2d § 3739, at 582 (1985)).
Although these principles appear dispositive of the remand question, courts of appeal,
until recently, were split as to whether cases removed under § 2679(d)(2) following the Attorney
General's certification that a named defendant was acting within the scope of his employment at
the time of the events alleged in the complaint could be remanded. Specifically, the question
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presented in those cases was whether the language of § 2679(d)(2), "[t]his certification of the
Attorney General shall conclusively establish scope of office or employment for purposes of removal," precluded a remand to the state court even though the district court concluded that the
Attorney General's certification was not upheld. The First and D.C. Circuits held that remand was appropriate for two reasons: (i) by "imply[ing] power ... (should scope [of employment] not
be found) from the analogous authorization in section 2679(d)(3)" that expressly requires remand where the Attorney General declines to certify the defendant and the defendant unsuccessfully
petitions a district court for certification; and (ii) because "remand is both more logical and
efficient than a dismissal of the federal action."4 By comparison, the Third, Fourth, Fifth, and
Sixth Circuits reached a contrary conclusion, holding that
[rjemand is precluded by the Attorney General's removal under 28 U.S.C. §
2679(d). ... The district court's jurisdiction on removal authorizes it to try the
case even though the federal interest has been eliminated, and at that stage in the
proceedings, it should exercise its jurisdiction and try the case.s
4 Nasuti v. Scannell, 906 F.2d 802, 814 n. 17 (1st Cir. 1990); see also Haddon v. United
States, 68 F.3d 1420, 1426-27 (D.C. Cir. 1995) ("We thus agree with the First Circuit, which
reads Sections (d)(2) and (d)(3) in harmony, not in conflict with each other, inferring the power
to remand when there is certification under Section (d)(2) from the explicit power to do so under
Section (d)(3).").
5 Borneman v. United States, 213 F.3d 819, 829 (4th Cir. 2000); see also Aliota v.
Graham, 984 F.2d 1350, 1356 (3d Cir. 1993) ("[W]e conclude that when a tort suit against a
federal employee is filed in state court and the Attorney General certifies that the employee was acting within the scope of the employee's office or employment and removes the case, the district court has no authority to remand the case on the ground that the Attorney General's certification was erroneous."); Ross v. Bryan, 309 F.3d 830, 836 (4th Cir. 2002) (instructing district court to "consider the merits of the case and proceed to final judgment" even if, after reevaluating scope
of employment issue, certification is deemed improper); Garcia v. United States, 88 F.3d 318,
325 (5th Cir. 1996) ("[F]or subpart (d)(2), upon rejection of the Attorney General's certification,
the district court retains jurisdiction and may not remand the action to state court."); Osborn v.
Haley, 422 F.3d 359, 365 (6th Cir. 2005) (agreeing with Third, Fourth, and Fifth Circuits).
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In doing so, these courts of appeal reasoned that the use of the word "conclusively" in § 2679(d)(2) forecloses any judicial inquiry into whether there is subject matter jurisdiction over
the removed case.
In Osborn v. Haley, 549 U.S. 225 (2007), the Supreme Court recently resolved this circuit
split, agreeing with the Third, Fourth, Fifth, and Sixth Circuits, and holding that a case removed
under the Westfall Act following the Attorney General's certification may not be remanded even if the certification as to scope of employment fails, and a fortiori if the certification succeeds.
There, the Supreme Court, reviewing a Sixth Circuit decision, directly addressed the question
whether the Westfall Act's "command"--namely that "certification of the Attorney General shall
conclusively establish scope of office or employment for purposes of removal"6--must be read
"to proscribe shuttling cases back to state courts and, instead, to require district court
adjudication of the controversy even when a Westfall Act certification is rejected and, correspondingly, substitution of the United States as defendant is denied." Id. at 237. In answering this question in the affirmative, the Supreme Court first noted that the Westfall Act
treats removal differently in two circumstances. On the one hand, where, as here, the Attorney
General removes the case to federal court under § 2679(d)(2), the statute is silent as to remand.
Yet, on the other hand, § 2679(d)(3) requires a remand where, unlike here, (i) the Attorney
General refuses to certify the defendant but, in its discretion, elects to remove the case to federal
court, and thereafter (ii) the defendant unsuccessfully petitions the district court for certification. The presence of an express remand requirement in § 2679(d)(3), and the absence of an analogous
provision in § 2679(d)(2), led the Supreme Court "to conclude that Congress gave district courts
128 U.S.C. § 2679(d)(2).
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no authority to return cases to state courts on the ground that the Attorney General's certification was unwarranted." Id. at 241. As the Supreme Court explained, "when the Attorney General
certifies scope of employment, his certificate 'conclusively establishes] scope of office or employment for purposes of removal" thereby "rendering] the federal court exclusively
competent and categorically precluding] a remand to the state court." Id. at 242-43 (first alteration and emphasis in original) (quoting § 2679(d)(2)). In other words, while the certification may fail as to scope of employment, it never fails as to federal subject matter
jurisdiction.
Significantly, the Supreme Court noted that removal under the Westfall Act following the
Attorney General's certification differs materially from the typical case in which remand is sought for want of subject matter jurisdiction. This is so, the Supreme Court explained, because the analysis in routine remand cases focuses sharply on "whether complete diversity exists or whether the complaint raises a federal question." Id. at 243. In contrast, cases in which removal is sought by the Attorney General following certification do not involve a threshold inquiry into whether there is a proper basis for federal jurisdiction; rather, "the Attorney General's
certification forecloses any jurisdictional inquiry" because the certification conclusively provides
the basis for federal jurisdiction under § 2679(d)(2). See id. Accordingly, a district court may not order a remand because there is no defect in subject matter jurisdiction.
In this case, plaintiffs motion for remand must be denied under the Supreme Court's controlling decision in Osborn and earlier, consistent Fourth Circuit decisions. See Ross v.
Bryan, 309 F.3d 830 (4th Cir. 2002); Borneman v. United States, 213 F.3d 819 (4th Cir. 2000).
There, as here, the United States certified under the Westfall Act defendants named in a state
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court action, thereby removing the entire action to federal court. To be sure, as plaintiff points
out in his reply brief, he did not contest the propriety of certification in this case, whereas
certification ultimately failed on the scope of employment issue in Osborn and the cases that
comprised the now-resolved circuit split. See supra notes 4-5. Yet, this factual difference is
immaterial, for Osborn holds that § 2679(d)(2) provides a conclusive basis for federal subject
matter jurisdiction in all cases, regardless of whether certification is ultimately upheld. See Osborn, 549 U.S. at 243. It bears emphasis, as noted supra, that the certification never fails as to
subject matter jurisdiction.
It follows from Osborn that this basis for federal subject matter jurisdiction remains
despite the fact that (i) the United States has been dismissed as a defendant, (ii) the remaining
claims arise solely under state law, and (iii) the remaining defendants are Virginia citizens. See
Jamison, 14 F.3d at 239 (quoting 14A C. Wright, A. Miller, & E. Cooper, Federal Practice &
Procedure: Jurisdiction 2d § 3739, at 582 (1985)). As the Fourth Circuit has held, "the
jurisdiction properly acquired by the removal [under the Westfall Act] was effectively mandatory
and did not permit a discretionary remand following denial of the federal immunity defense."
Mangoldv. Analytic Servs., Inc., 77 F.3d 1442 (4th Cir. 1996). Thus, because plaintiff cannot
demonstrate that subject matter jurisdiction is lacking, a remand of this case is not proper under § 1447(c).
III. In sum, the Supreme Court in Osborn held that district courts may not remand cases previously removed to federal court under the Westfall Act following the Attorney General's
certification that certain defendants were acting within the scope of their federal employment at
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the time of the acts alleged in the complaint. In the Supreme Court's view, remand is foreclosed
by the fact that § 2679(d)(2), a provision of the Weslfall Act, considers the act of certification to establish "conclusively" subject matter jurisdiction in federal courts. Aa this case falls squarely
within Osborn's holding, plaintiffs motion to remand this Westfall Act case must be denied.
Altliough this case presents an undeniably appealing candidate for remand, given that no federal
claims or defendants remain, the Supreme Court's decision in Osborn nonetheless forecloses
remand.
An appropriate Order shall issue.
Alexandria, Virginia
August 4,2010
TS.E!lia,JlI
United States District Judge
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