Kelley et al v. Kelley

Filing 5

MEMORANDUM OPINION AND ORDER DENYING THE MOTION TO SET A BRIEFING SCHEDULE DKT. NO. 3 AND DISMISSING THE CASE FOR LACK OF JURISDICTION. Signed by District Judge Irene M. Keeley on 11/7/2013. (Copy counsel of record via CM/ECF)(jmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ROBERT KELLEY, SHARON GEORGE,
JIM KELLEY, DELORES STUTLER,
WILMA JONES, GEORGE KELLEY
and SHARON ANN KELLEY,
Plaintiffs,
v.

//

CIVIL ACTION NO. 1:13CV224
(Judge Keeley)

NORMA KELLEY, as an individual
and as Executrix of the Estate
of Paul W. Kelley, deceased,
Defendant,
USA, on behalf of its agency,
US Department of Veterans Affairs,
Interested Party.
MEMORANDUM OPINION AND ORDER DENYING THE
MOTION TO SET A BRIEFING SCHEDULE [DKT. NO. 3]
AND DISMISSING THE CASE FOR LACK OF JURISDICTION
Pending before the Court is the motion of the defendant, Norma
Kelley (“Mrs. Kelley”), requesting a briefing schedule on the
question whether a state court may compel federal officials to
testify in a state civil case (dkt. no. 3).

On November 6, 2013,

the Court held a hearing on the motion at which all parties
appeared by counsel. For the reasons that follow, the Court DENIES
the motion and DISMISSES the case.
I.
This case presents two questions: (1) whether a state court
may compel a federal official to testify in a state civil case to

KELLEY, ET AL. V. KELLEY

1:13CV224

MEMORANDUM OPINION AND ORDER DENYING THE
MOTION TO SET A BRIEFING SCHEDULE AND
DISMISSING THE CASE FOR LACK OF JURISDICTION
which the United States is not a party; and (2) if not, whether a
federal district court, upon removal of the issue, may do so.
Here, the underlying state case filed in the Circuit Court of
Harrison County, West Virginia, involves a family dispute over the
validity

of

a

will.

Specifically,

the

six

children

of

the

plaintiffs’ decedent contend that their father, Paul W. Kelley,
lacked the testamentary capacity to execute a will that left his
entire estate to the defendant, his wife at the time of his death.
Because their father had received medical treatment at the VA
Hospital in Clarksburg, West Virginia, prior to his death, the
plaintiffs sought to depose those VA doctors who provided care to
their father.
The United States, appearing specially in state court for the
purpose of opposing the depositions, argued that the VA’s refusal
to permit the doctors to testify pursuant to its regulations was
not “arbitrary and capricious.” However, counsel for the United
States failed to advise the state court that, under federal law,
that court lacked jurisdiction to hear the matter. See

Boron Oil

Co. v. Downie, 873 F.2d 67 (4th Cir. 1989). Therefore, assuming it
had jurisdiction, the state court ordered the VA doctors to submit
to the depositions within certain procedural parameters. Rather
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KELLEY, ET AL. V. KELLEY

1:13CV224

MEMORANDUM OPINION AND ORDER DENYING THE
MOTION TO SET A BRIEFING SCHEDULE AND
DISMISSING THE CASE FOR LACK OF JURISDICTION
than refuse to comply with that order, the United States, as an
interested party, removed the issue.1
II.
Before evaluating the merits of a case, a federal court must
first determine whether it has subject-matter jurisdiction to hear
the case. “[W]hen a federal court concludes that it lacks subjectmatter

jurisdiction,

entirety.”

the

complaint

must

be

dismissed

in

Arbaugh v. Y&H Corp., 546 U.S. 500, 502 (2006).

its

Here,

under Boron, 873 F.2d 67 at 70, it is clear that the Court lacks
subject-matter jurisdiction to determine the issue removed by the
United States.
The Housekeeping Act, 5 U.S.C. § 301, authorizes the head of
a federal agency to promulgate rules to govern discovery and
disclosure,

specifically,

“the

conduct

of

its

employees,

the

distribution and performance of its business, and the custody, use,
and preservation of its records, papers, and property.”

In 1951,

the Supreme Court upheld the validity of regulations promulgated

1

As the United States’ notice of removal explains, “[t]he United
States is removing Harrison County Circuit Court Case No. 12-C-323-3 for
the limited purpose of resolving the VA’s application of its Touhy
regulations and the Circuit Court’s Orders compelling the appearance and
testimony of the VA physicians. The United States is not removing [the
state case] generally.”

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KELLEY, ET AL. V. KELLEY

1:13CV224

MEMORANDUM OPINION AND ORDER DENYING THE
MOTION TO SET A BRIEFING SCHEDULE AND
DISMISSING THE CASE FOR LACK OF JURISDICTION
under The Housekeeping Act in United States ex rel. Touhy v. Ragen,
340 U.S. 462, 468 (1951).

“Touhy is part of an unbroken line of

authority” supporting the rule “that a federal employee may not be
compelled to obey a subpoena contrary to his federal employer’s
instructions under valid agency regulations.”

Boron, 873 F.2d at

69.
Underlying the federal litigation in Boron was a state case
from the Circuit Court of Brooke County, West Virginia, in which
the plaintiffs had sought to compel the testimony of an EPA
employee, Jack Downie.

Id. at 68.

After the trial court issued

two subpoenas for Downie to testify, the United States removed the
issue to the district court, which determined that removal was
proper and that its jurisdiction on removal included the authority
to review the EPA’s decision to prohibit Downie from testifying.
Id. Rejecting the sovereign immunity defense, the court applied an
“arbitrary and capricious” standard of review and ordered Downie to
testify, finding that the EPA had erroneously prohibited the
testimony. Id.

The United States then appealed the district

court’s decision to the United States Court of Appeals for the
Fourth Circuit.

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KELLEY, ET AL. V. KELLEY

1:13CV224

MEMORANDUM OPINION AND ORDER DENYING THE
MOTION TO SET A BRIEFING SCHEDULE AND
DISMISSING THE CASE FOR LACK OF JURISDICTION
In Boron, the Fourth Circuit addressed whether the district
court possessed jurisdiction over the matter ab initio. Finding
that it did not, our circuit court observed:
The district court exceeded its jurisdiction upon
removal, which it derived solely from that of the state
court, in compelling Downie to testify contrary to the
direction of the EPA. The doctrine of sovereign immunity
precludes the state court - and the federal court which
gained limited jurisdiction upon removal - from
exercising jurisdiction to compel Downie to testify
contrary to EPA instructions, and also denies it the
authority to review and set aside the EPA’s decision and
the federal regulations under which it is made. . . . The
jurisdiction of a federal district court upon removal,
pursuant to 28 U.S.C. § 1442, is essentially derivative
of that of the state court, and the federal court
acquires none upon removal.
Id. at 70.
Applying Boron to the facts here, it is plain that this Court
lacks jurisdiction to hear the issue removed by the government.
Sovereign immunity precluded the state court in the first instance
from ordering the VA doctors to submit to depositions in the
underlying action. Upon removal, pursuant to 28 U.S.C. § 1442(a),
this Court derived no jurisdiction from the state court inasmuch as
that court never possessed jurisdiction over the issue in the first
place. During the hearing, all parties ultimately conceded this
point and concurred that, under Boron, any analysis of the VA
regulations by this or the state court would be improper.
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KELLEY, ET AL. V. KELLEY

1:13CV224

MEMORANDUM OPINION AND ORDER DENYING THE
MOTION TO SET A BRIEFING SCHEDULE AND
DISMISSING THE CASE FOR LACK OF JURISDICTION
III.
In conclusion, for the reasons discussed, the Court DENIES the
motion of the defendant to set a briefing schedule and DISMISSES
the case for lack of jurisdiction.
It is so ORDERED.
The Court directs the Clerk to transmit copies of this Order
to counsel of record.
DATED: November 7, 2013.

/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

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