Borneman v. United States ( 2000 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOHN MICHAEL BORNEMAN,
Plaintiff-Appellee,
v. No. 99-1173
UNITED STATES OF AMERICA,
Defendant-Appellant.
JOHN MICHAEL BORNEMAN,
Plaintiff-Appellant,
v. No. 99-1479
UNITED STATES OF AMERICA,
Defendant-Appellee.
Appeals from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, District Judge.
(CA-98-97-7-F)
In Re: UNITED STATES OF AMERICA;
RICHARD MCCAULEY, No. 99-1982
Petitioners.
On Petition for Writ of Mandamus.
(CA-98-97-7-F)
Argued: February 28, 2000
Decided: May 30, 2000
Before NIEMEYER, WILLIAMS, and MOTZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded by published opinion.
Judge Niemeyer wrote the opinion, in which Judge Williams and
Judge Motz joined.
_________________________________________________________________
COUNSEL
ARGUED: Neil Irving Fowler, Assistant United States Attorney,
Raleigh, North Carolina, for Appellant. James Kenneth Larrick, Wil-
mington, North Carolina, for Appellee. ON BRIEF: Janice McKen-
zie Cole, United States Attorney, Anne M. Hayes, Assistant United
States Attorney, Raleigh, North Carolina, for Appellant.
_________________________________________________________________
OPINION
NIEMEYER, Circuit Judge:
In this appeal, we address whether John Borneman, a United States
postal employee, may maintain a state common-law action against
Richard McCauley, a fellow postal employee, for an assault and bat-
tery that allegedly occurred during work. Proceeding under the West-
fall Act, the United States represented McCauley and removed this
action to federal court, certifying that McCauley had acted within the
scope of his employment and substituting the United States as the sole
defendant. The United States then moved to dismiss the action
because McCauley's conduct, as so imputed to the United States, was
protected by sovereign immunity. Without resolving disputed facts,
the district court concluded that the United States' certification and
substitution were erroneous. The district court found that the removal
to federal court was therefore improper and entered an order remand-
ing the case to state court.
After addressing the complex question of whether we have juris-
diction to review the district court's rulings and concluding that we
do, we vacate the district court's remand order, as well as its rulings
that the United States' certification and substitution were erroneous,
and we remand this case to the district court to resolve the factual
question of whether McCauley's actions fell within the scope of his
2
employment. We affirm the district court's order denying Borneman
his attorneys fees.
I
John Borneman, employed by the United States Postal Service as
a rural route mail carrier, commenced this assault and battery action
in state court in Wilmington, North Carolina, against a Postal Service
manager, Richard McCauley, who, Borneman alleged, assaulted him
during a dispute at work. In his complaint, Borneman, who also
served as a union shop steward, alleged that on May 9, 1997, he and
McCauley became engaged in a heated discussion about labor-
management issues and Borneman's request for auxiliary help in his
mail-sorting and delivery duties so that he could attend a meeting
with a supervisor to discuss a grievance filed on behalf of fellow
union members. Borneman felt that McCauley had wrongfully failed
to procure the requested auxiliary help, and he informed McCauley
that he wanted to file a grievance against McCauley related to this
issue. Borneman alleged that McCauley then became angry and fol-
lowed Borneman out of McCauley's office. Borneman further alleged
that as he was walking away, McCauley "kicked[Borneman's] feet
and pushed him from behind with his hand causing[Borneman] to fall
forward onto the tile floor. [Borneman] fell on his right knee severely
injuring it." Borneman asserted that he suffered a "fracture of the right
ossicle as well as a lateral meniscal tear," which required surgery.
The United States, as McCauley's employer, undertook to repre-
sent McCauley and filed (1) a notice of removal to federal court pur-
suant to 28 U.S.C. §§ 1441, 1442, and 2679; (2) a certification made
by the Attorney General through the Assistant United States Attorney
for the Eastern District of North Carolina that, at the time of the
alleged assault, McCauley "was acting within the scope of employ-
ment as an employee of the United States"; (3) a notice of the substi-
tution of the United States as party defendant in lieu of McCauley;
and (4) a motion to dismiss Borneman's complaint under Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6), asserting sovereign
immunity because the United States is not subject to suit under the
Federal Tort Claims Act for the torts alleged by Borneman and, in any
event, Borneman failed to exhaust administrative procedures.
3
Borneman opposed removal and moved to remand his suit to state
court, arguing that McCauley had acted outside the scope of his
employment in assaulting Borneman and that federal jurisdiction was
therefore lacking. The government responded with the affidavit of
McCauley, in which he asserted that he did not physically touch
Borneman and that he did not cause Borneman's injury. According to
McCauley, Borneman left McCauley's office, "walking backwards
some distance from me," making obscene gestures and "cursing."
McCauley stated that he ordered Borneman "to leave the building,
turned and was walking back to my office when I heard a noise. I
looked back and [Borneman] was on the floor. I never touched
[Borneman], did not push him, and presume he tripped while walking
backwards." Borneman responded with his own affidavit, alleging
additional facts supporting his claims of assault and battery and chal-
lenging McCauley's description of the events as"simply untrue."
Borneman attached to his affidavit a letter from his physician stating
that in his opinion, "the greatest likelihood of mechanism of injury [to
Borneman's knee] based on his pathology would be a forward fall,"
which tended to support Borneman's version of the facts.
Without a hearing and based on this record, the district court dis-
posed of the United States' motion to dismiss the complaint and
Borneman's motion to remand in an opinion and order dated October
15, 1998. The district court ruled that under the North Carolina law
of respondeat superior, McCauley's actions, taken as alleged by
Borneman in his complaint and affidavit, did not fall within the scope
of McCauley's employment. The district court therefore concluded
that the scope-of-employment certification by the Attorney General
"was erroneous," that the substitution of the United States as the
defendant "also was erroneous," and that removal of the action by the
United States to federal court "was improper." The court determined
accordingly that it lacked subject matter jurisdiction and remanded
the case to state court, citing 28 U.S.C. § 1447(c) as the basis for its
remand.
The United States filed a motion for reconsideration pursuant to
Federal Rule of Civil Procedure 59(e), requesting an evidentiary hear-
ing to resolve the factual dispute of whether "Manager Richard
McCauley was acting within the scope of his employment when the
alleged tortious action occurred." The United States maintained that
4
the court should not have resolved the factual dispute in Borneman's
favor without an evidentiary hearing. The district court denied the
motion on the grounds that 28 U.S.C. § 1447(d) prevented the court
from reconsidering its earlier order.
Thereafter, Borneman filed a motion for an award of attorneys fees
and costs in the amount of $6,273 because the position of the United
States in removing this case "was not substantially justified." The dis-
trict court denied this motion, concluding that the United States "did
not act improvidently or in bad faith" in removing the suit.
The United States filed this appeal, challenging the district court's
ruling that the United States' certification and substitution actions
were erroneous based on an application of North Carolina principles
of respondeat superior. The United States also filed a petition for a
writ of mandamus, seeking review of the district court's order
remanding the case to the state court. Borneman filed a cross-appeal,
challenging the district court's decision not to award him attorneys
fees.
II
We first address Borneman's contention that we lack jurisdiction
to consider the United States' appeal and petition for mandamus
relief. Borneman argues that the district court's order remanding the
case to state court deprives this court of jurisdiction because, under
28 U.S.C. § 1447(d), "[a]n order remanding a case to the State court
from which it was removed is not reviewable on appeal or otherwise."
Borneman maintains that § 1447(d) prohibits us from reviewing both
the district court's remand order and its antecedent rulings rejecting
the United States' certification and its substitution as the defendant
under §§ 5 and 6 of the Federal Employees Liability Reform and Tort
Compensation Act of 1988 ("the Westfall Act"), 28 U.S.C. § 2679(b)
& (d). As we have noted, the district court, relying on its conclusion
that McCauley was not acting within the scope of his employment,
ruled that the Attorney General's certification and the substitution of
the United States as defendant was "erroneous," and that the removal
to federal court was "improper." Concluding that it therefore lacked
jurisdiction, the district court remanded the case to state court, citing
28 U.S.C. § 1447(c).
5
Section 1447(c) of Title 28 provides that a case removed to federal
court must be remanded to state court if it appears that the federal
court lacks subject matter jurisdiction:
A motion to remand the case on the basis of any defect other
than lack of subject matter jurisdiction must be made within
30 days after the filing of the notice of removal under sec-
tion 1446(a). If at any time before final judgment it appears
that the district court lacks subject matter jurisdiction, the
case shall be remanded.
If a district court orders a remand based on § 1447(c), its order is not
reviewable by a court of appeals by reason of 28 U.S.C. § 1447(d).
Thus, while 28 U.S.C. §§ 1441, 1442, and 2679-- the sections relied
upon by the United States in this case -- are among various statutes
authorizing removal of state-filed cases to federal court, review by
appeal, by mandamus, or otherwise is precluded under§ 1447(d) if
the remand is based on one of the "grounds specified in § 1447(c)."
Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127 (1995);
Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 345-46
(1976). Whether a district court's remand order is reviewable under
§ 1447(d) is not determined by whether the order explicitly cites
§ 1447(c) or not. See Mangold v. Analytic Servs., Inc., 77 F.3d 1442,
1450 (4th Cir. 1996). The bar of § 1447(d) applies to any order invok-
ing substantively one of the grounds specified in§ 1447(c). See id. at
1450-51.
In this case, the court did state that it was remanding the case for
lack of jurisdiction, citing 28 U.S.C. § 1447(c). Therefore, if we are
to accept this conclusion, § 1447(d) would, at first blush, appear to
bar us from reviewing the district court's order. Unfortunately, in the
circumstances presented, the task is not so straightforward. The dis-
trict court's conclusion that it did not have subject matter jurisdiction
was premised on two antecedent decisions that are both judicially
reviewable and appealable: (1) that the United States' scope-of-
employment certification was erroneous and (2) that the United
States' substitution as defendant was erroneous. 1 If these antecedent
_________________________________________________________________
1 See Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434 (1995)
(holding that certification for purposes of substitution is judicially
6
components of the district court's remand order are reviewable, it fol-
lows that the remand order itself should become reviewable because
its propriety depends on premises that are not statutorily barred from
review, rather than on whether the federal jurisdictional requirements
referenced in § 1447(c) are satisfied. See Mangold, 77 F.3d at 1453.
And an otherwise reviewable ruling is not shielded from review
merely because it is a constituent aspect of a remand order that would
itself appear to be insulated from review by § 1447(d). See Waco v.
United States Fidelity & Guar. Co., 293 U.S. 140, 143 (1934) (treat-
ing separately components of district court's order dismissing a party
and remanding action); Mangold, 77 F.3d at 1446 (treating separately
components of district court's order denying immunity and remanding
action to state court).
But even if a remand order does not in this oblique manner become
subject to review when its underlying premises are appealed,
§ 1447(d)'s restriction on appellate review of remand orders cannot
be read categorically when other statutes in tension with it are consid-
ered. Removal by the United States in this case rested not only on
§§ 1441 and 1442 but also on § 2679(d)(2), which provides that upon
a scope-of-employment certification by the Attorney General, the
state-court action "shall be removed" to federal court. Moreover, the
statute provides that for purposes of removal , the certification is "con-
clusive[ ]." 28 U.S.C. § 2679(d)(2).
In Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995), the
Supreme Court held that the Attorney General's scope-of-
employment certification made under § 2679(d)(2) serves two offices.
It forms the basis for the United States to be substituted as defendant,
a consequence that is subject to judicial review. See 515 U.S. at 434.
It also conclusively establishes removal jurisdiction in the federal
court, a consequence that is not judicially reviewable. See id. at 432("Congress made the Attorney General's certificate conclusive solely
for purposes of removal, and notably not for purposes of substitu-
_________________________________________________________________
reviewable); Jamison v. Wiley, 14 F.3d 222, 230 n.10, 233-34 (4th Cir.
1994) (holding that rejection of certification amounts to a denial of abso-
lute immunity which is immediately appealable); Aliota v. Graham, 984
F.2d 1350, 1353-54 (3d Cir. 1993) (same); Mitchell v. Carson, 896 F.2d
128, 133 (5th Cir. 1990) (same).
7
tion."); see also Aliota v. Graham, 984 F.2d 1350, 1357 (3d Cir.
1993) ("Congress, by expressly stating that the Attorney General's
certification is ``conclusive' as to jurisdiction, has prohibited a district
court from using its disagreement with the Attorney General's scope
of employment certification to deny jurisdiction and so send the case
back to the state court where it originated"). Thus, in § 2679(d)(2),
Congress withdrew from judicial determination any review of the
Attorney General's decision to remove a case and have it determined
in a federal forum. As the Third Circuit stated in Aliota, "Since sub-
ject matter jurisdiction has been conclusively established, there is no
jurisdictional question to be resolved by the district court." 984 F.2d
at 1357. And any district court that attempts to review the propriety
of the Attorney General's removal made under § 2679(d)(2) exceeds
its statutory authority.
Thus, 28 U.S.C. § 2679(d)(2), which gives the Attorney General
the exclusive authority to determine removal jurisdiction under the
Westfall Act, comes into tension with 28 U.S.C.§ 1447(d), which
reserves to a district court the exclusive authority to determine on a
remand motion whether the jurisdictional statute justifying removal is
satisfied. This tension can best be resolved by giving effect to the
intent of each statute and preserving to the district court its exclusive
authority under § 1447(d) over remand orders based on § 1447(c)
except when Congress directs otherwise in a more specific situation,
such as where Congress gives the Attorney General the exclusive
power to decide whether to have a Westfall Act case tried in federal
court. Stated otherwise, § 1447(d) typically precludes review of
remands based on whether the requirements of federal jurisdiction
have been satisfied, such as whether there is complete diversity, see
Aliota, 984 F.2d at 1357, but Congress never"intended to extend
carte blanche authority to the district courts to revise the federal stat-
utes governing removal by remanding cases on grounds that seem jus-
tifiable to them but which are not recognized by the controlling
statute," Thermtron, 423 U.S. at 351. Indeed, in Thermtron, the
Supreme Court appears to have recognized an exception to
§ 1447(d)'s bar as follows:
Because the District Judge remanded a properly removed
case on grounds that he had no authority to consider, he
8
exceeded his statutorily defined power; and issuance of the
writ of mandamus was not barred by § 1447(d).
423 U.S. at 351. The Court thus left § 1447(d) typically applicable to
bar review of "any order remanding a case on grounds permitted by
the statute." Id. at 352 (emphasis added); see also Mangold, 77 F.3d
at 1453; Aliota, 984 F.2d at 1357.
Accordingly, as Thermtron instructs, § 1447(d) prohibits review of
district courts' determinations of whether jurisdictional statutes have
been satisfied, not review of determinations where district courts
exceed their jurisdictional authority. Because § 2679(d)(2) "conclu-
sively" vests federal jurisdiction over a suit against a federal
employee who the Attorney General has certified"was acting within
the scope of his office or employment," a district court has no author-
ity to remand a case removed pursuant to that section, and the bar of
§ 1447(d) does not preclude us from reviewing a remand order when
the district court exceeds its authority.
Therefore, we hold (1) that 28 U.S.C. § 1447(d) interposes no bar
to either our review of the district court's ruling that the Attorney
General's scope-of-employment certification for the purpose of sub-
stitution under the Westfall Act was erroneous or our review of the
consequent remand order entered in violation of 28 U.S.C.
§ 2679(d)(2) and (2) that we have authority to review such rulings
either as appealable decisions under 28 U.S.C. § 1291 or on petition
for a writ of mandamus. See Quackenbush v. Allstate Ins. Co., 517
U.S. 706, 714 (1996) (finding remand order appealable final order
because "[w]hen a district court remands a case to a state court, the
district court disassociates itself from the case entirely, retaining noth-
ing of the matter on the federal court's docket"); Thermtron, 423 U.S.
at 351 (because the district court exceeded statutory authority, manda-
mus review was not barred by § 1447(d)); Shives v. CSX Transp.,
Inc., 151 F.3d 164, 167-68 (4th Cir. 1998) (recognizing review of
remand order either under final judgment principle or under petition
for writ of mandamus); cf. Mangold, 77 F.3d at 1453 (treating appeal
of a remand order as a petition for a writ of mandamus).
III
This brings us to the merits of the district court's rulings that the
United States' scope-of-employment certification was erroneous and
9
that, accordingly, the substitution of itself as party defendant was also
erroneous. The district court reached these conclusions by applying
the law of North Carolina, where the alleged assault and battery
occurred, to the facts as asserted by Borneman in his complaint and
affidavit and determining that "McCauley's tortious act was not com-
mitted in the scope of his employment." The United States' challenge
to these rulings presents two questions: (1) whether the district court
followed the proper procedure for reviewing a Westfall Act certifica-
tion and (2) whether the district court properly applied the North Car-
olina law of respondeat superior -- questions that we now address.
A
In Maron v. United States, 126 F.3d 317, 323 (4th Cir. 1997), we
stated that the plaintiff has the burden of persuasion "to refute the cer-
tification of scope of employment issued by the Attorney General and
to prove by a preponderance of the evidence that the defendants were
not acting within the scope of their employment." See also Gutierrez
de Martinez v. Drug Enforcement Administration, 111 F.3d 1148,
1153-55 (4th Cir. 1997). "If the plaintiff presents persuasive evidence
refuting the certification," the burden shifts to the United States to
"provide evidence and analysis to support its conclusion that the torts
occurred within the scope of employment." Maron, 126 F.3d at 323;
see also Gutierrez, 111 F.3d at 1155. To carry its burden, the plaintiff
must submit "specific evidence or the forecast of specific evidence
that contradicts the Attorney General's certification decision, not
mere conclusory allegations and speculation." Gutierrez, 111 F.3d at
1155.
Recognizing the "desirability of quickly resolving the scope-of-
employment issue" because "immunity under the Westfall Act, like
other forms of absolute and qualified immunity,``is an immunity from
suit rather than a mere defense to liability,'" Gutierrez, 111 F.3d at
1154 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)), we
emphasized that "the district court should remain cognizant of the
considerations weighing against protracted litigation under the West-
fall Act," id. at 1155. Nevertheless, we recognized that this burden-
shifting proof scheme would sometimes make it advisable for the trial
court to permit limited discovery or conduct an evidentiary hearing to
resolve competing factual claims concerning the scope-of-
10
employment issue. At all stages of the process, it is for the district
court to weigh the sufficiency of the evidence, to determine whether
genuine issues of fact exist, and ultimately to resolve these factual
issues.
Once any factual issues are resolved, the district court must then
proceed to "weigh the evidence on each side to determine whether the
certification should stand." Gutierrez, 111 F.3d at 1155. In making
this ultimate determination, the district court must apply the law of
the state in which the alleged tort occurred to ascertain whether the
federal employee was acting within the scope of his employment. See
Maron, 126 F.3d at 323-24; Jamison v. Wiley , 14 F.3d 222, 237 (4th
Cir. 1994).
In this case, the district court properly recognized that Borneman
presented evidence refuting the United States' certification. The court
referred to Borneman's complaint and his affidavit, reciting Borne-
man's version of the facts. But then, without discussing the facts pres-
ented by the United States in McCauley's affidavit, the court simply
concluded that "McCauley's tortious act was not committed in the
scope of his employment." Because the court never acknowledged the
competing factual position presented by the United States, it over-
looked its obligation to resolve disputed factual contentions. Rather,
it accepted Borneman's contested allegations as true, thus failing to
hold him to his burden of proof.
While the accounts of Borneman and McCauley are consistent in
some respects, they differ on the central issue of this case. Borneman
contends that McCauley pushed and tripped him, causing him to fall.
McCauley denies that any physical contact occurred and claims that
he had turned around and was returning to his office at the time he
heard Borneman fall. Clearly, if McCauley's account of the incident
were believed, there would be no basis for asserting that he had com-
mitted an intentional tort and no basis for finding that he had acted
outside the scope of his employment. This critical discrepancy is
therefore material to the court's determination. Nonetheless, the dis-
trict court apparently took Borneman's allegations as true, rather than
requiring him to "present[ ] persuasive evidence," Maron, 126 F.3d at
323, in support of the allegations and allowing McCauley and the
11
government to present contrary evidence, which would then be
weighed by the court.
B
Even if Borneman's version of events, as stated in his complaint
and alleged in his affidavit, is found to be controlling, it is not clear
that McCauley acted outside the scope of his employment under
North Carolina law. While it is true, as the district court recognized,
that under the North Carolina law of respondeat superior, an inten-
tional tort is "rarely considered to be within the scope of an employ-
ee's employment," Medlin v. Bass, 398 S.E.2d 460, 464 (N.C. 1990)
(quotation marks and citation omitted), "rarely" does not mean
"never." And in North Carolina, the scope-of-employment question is
ordinarily one for the jury. See id. at 463; see also Robinson v. McAl-
haney, 198 S.E. 647, 650 (N.C. 1938); Stanley v. Brooks, 436 S.E.2d
272, 274 (N.C. Ct. App. 1993); Edwards v. Akion , 279 S.E.2d 894,
900 (N.C. Ct. App. 1981); Evington v. Forbes, 742 F.2d 834, 836-37
(4th Cir. 1984) (recognizing North Carolina rule that close or doubtful
scope-of-employment cases are submitted to the jury).
North Carolina case law discloses numerous instances in which the
issue of whether an intentional assault by an employee was within the
scope of employment so as to impose vicarious liability on the
employer was determined to be a jury question. See, e.g., Clemmons
v. Life Ins. Co. of Ga., 163 S.E.2d 761, 766 (N.C. 1968) (collection
agent for insurance company threatened plaintiff with pistol when she
was unable to pay premium); Munick v. Durham, 106 S.E. 665, 667
(N.C. 1921) (city employee assaulted plaintiff when he paid portion
of his water bill in pennies); Carawan v. Tate , 280 S.E.2d 528, 531
(N.C. Ct. App. 1981), modified, 286 S.E.2d 99 (N.C. 1982) (parking
lot attendant drew gun on plaintiff after plaintiff refused to pay park-
ing fee); Edwards, 279 S.E.2d at 900 (sanitation worker grabbed and
hit plaintiff after dispute about the manner in which the worker col-
lected plaintiff's refuse). The principle that should govern this factual
inquiry has been formulated in various ways by the North Carolina
courts: whether the employee was "about his master's business or
whether he stepped aside from his employment to commit a wrong
prompted by a spirit of vindictiveness or to gratify his personal ani-
mosity or to carry out an independent purpose of his own," see
12
Medlin, 398 S.E.2d at 463 (quotation marks and citation omitted);
whether the employee acted "as a means or for the purpose of per-
forming the work he was employed to do" or whether he "was
advancing a completely personal objective," id. at 464; or whether an
employee's act "was a means or method of doing that which he was
employed to do" or whether he "departed, however briefly, from his
duties in order to accomplish a purpose of his own, which purpose
was not incidental to the work he was employed to do," Wegner v.
Delly-Land Delicatessen, Inc., 153 S.E.2d 804, 808 (N.C. 1967). We
do not intend by this discussion to suggest any particular result from
the application of this principle to the facts of this case. We merely
observe that the inquiry is fact-bound and may involve consideration
of such factors as the degree to which the physical confrontation in
this case, if one occurred, represented an escalation of a work-related
dispute and the degree to which it was motivated by personal animos-
ity.
C
Because we conclude that material factual issues exist with respect
to both the existence of the alleged assault and its nature, we find that
the district court's decision to reject the United States' scope-of-
employment certification was premature. Borneman must be held to
his burden of proof, and the district court must resolve the material
factual issues. We therefore remand this case for proceedings consis-
tent with the Maron/Gutierrez procedures outlined above.
Should the district court conclude, after resolving all material facts,
that McCauley was not acting within the scope of his employment,
McCauley must be resubstituted as the defendant in this case. But the
district court may not thereafter remand the case to state court.
Remand is precluded by the Attorney General's removal under 28
U.S.C. § 2679(d). Also the district court should not dismiss it.2 The
_________________________________________________________________
2 We understand removal to be a forum selection procedure that of
itself confers no jurisdiction. Rather, it depends on an independent
ground for jurisdiction. Thus, when removal is conclusively allowed by
28 U.S.C. § 2679(d), remand is precluded, but the federal interest that
serves as the basis for federal jurisdiction may be independently evalu-
ated. In this case, federal jurisdiction is based on the fact that at the time
of removal, a federal employee ostensibly in the scope of his employ-
ment with the United States was a party.
13
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,
applying North Carolina law. The court will have already become
exposed to the merits of the case in adjudicating the scope-of-federal-
employment question, and, for reasons of judicial economy, conve-
nience, and fairness to the parties, it should then proceed to final judg-
ment. See Gutierrez, 515 U.S. at 435-36 (plurality opinion); cf. United
Mine Workers v. Gibbs, 383 U.S. 715, 725-26 (1966). If, on the other
hand, the district court concludes that McCauley was acting within
the scope of his employment, he enjoys absolute immunity and the
action becomes one against the United States under the Federal Tort
Claims Act.3
IV
In light of our ruling on the merits and our belief, in any event, that
the district court did not abuse its discretion in denying Borneman his
attorneys fees, we affirm the district court's ruling in that regard.
V
In sum, we vacate the district court's remand order and its rulings
finding erroneous the United States' certification and substitution. We
affirm the district court's order denying Borneman's motion for attor-
_________________________________________________________________
3 The government moved for dismissal in the district court on the dual
grounds that Borneman failed to satisfy the FTCA's administrative
exhaustion requirement, see 28 U.S.C. § 2675(a), and that his claim is
not cognizable under the FTCA, which specifically excludes any claim
arising out of an assault or battery, see 28 U.S.C. § 2680(h); Talbert v.
United States, 932 F.2d 1064, 1066 (4th Cir. 1991). However, once the
United States is substituted as defendant, the FTCA may not apply at all
if, as the record seems to indicate, Borneman's injuries were job-related
injuries compensable under the Federal Employees Compensation Act
(FECA). See 5 U.S.C. § 8102. In that case, FECA provides the exclusive
remedy for a federal employee against the United States. See 5 U.S.C.
§ 8116(c); Wallace v. United States, 669 F.2d 947, 951 (4th Cir. 1982);
see also Ezekiel v. Michel, 66 F.3d 894, 898-900 (7th Cir. 1995) (West-
fall Act substitution makes FECA exclusive remedy); Sowell v. American
Cyanamid Co., 888 F.2d 802, 804-05 (11th Cir. 1989) (same).
14
neys fees. And we remand this case to the district court for further
proceedings in accordance with this opinion.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED
15