Fleming v. United States , 162 F. App'x 383 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 13, 2006
Charles R. Fulbruge III
Clerk
No. 04-51081
Summary Calendar
JOHN T. FLEMING,
Plaintiff-Appellant,
versus
UNITED STATES OF AMERICA; ET AL.,
Defendants,
LEIF M. CLARK; NANCY RATCHFORD; KEVIN EPSTEIN;
RICHARD SIMMONS; HENRY HOBBS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:04-CV-641
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Before JONES, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Texas attorney John T. Fleming, appearing pro se, filed suit
in Texas state court against numerous individuals, including United
States Bankruptcy Judge Leif M. Clark and several United States
Bankruptcy Trustees, including Nancy Ratchford, Kevin Epstein,
Richard Simmons, and Henry Hobbs (the federal defendants).
Fleming’s suit arises primarily out of an order issued by Judge
*
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opinion should not be published and is not precedent except under the limited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.
Clark that purported to disbar Fleming from practice in the
Bankruptcy Court for the Western District of Texas and prohibited
Chapter 13 bankruptcy trustees from distributing attorneys’ fees to
Fleming in cases in which he represented debtors.1 The suit also
named additional defendants, including three of Fleming’s clients.
The federal defendants removed the case to the Western
District of Texas and subsequently filed a notice substituting the
United States as a defendant, pursuant to the Federal Tort Claims
Act (FTCA), as amended by the Westfall Act, 28 U.S.C. § 2679. The
Westfall Act provides individual federal employees with immunity
from certain tort claims and allows substitution of the United
States as a defendant upon certification by the Attorney General or
his designee that the employees were in the scope of their
employment at the time of the tortious conduct. See 28 U.S.C.
§ 2679(b); Rodriguez v. Sarabyn, 129 F.3d 760, 764 (5th Cir. 1997).
In accordance with the authority granted by 28 C.F.R. § 15.4, the
Chief of the Civil Division for the Western District of Texas
certified that the federal defendants were at all relevant times
acting within the scope of their federal employment. Over
Fleming’s objection, the district court entered an order
substituting the United States as a defendant in place of the
federal defendants and dismissing all claims against the federal
1
Judge Clark’s order was vacated and remanded, for lack of authority,
by the district court on July 19, 2004. See In re Luna, No. 03-50956, 2004 WL
1618824 (W.D. Tex. July 19, 2004).
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defendants. Fleming seeks to appeal that order.
This court directed the parties to brief whether the district
court’s order is appealable. For the following reasons, we
conclude that it is not, and we dismiss the appeal for lack of
jurisdiction.
This court is a court of limited jurisdiction, with authority
to hear appeals only from “final decisions” under 28 U.S.C. § 1291,
interlocutory decisions under 28 U.S.C. § 1292, nonfinal judgments
certified as final under FED. R. CIV. P. 54(b), or some other
nonfinal order or judgment to which an exception applies.
Briargrove Shopping Ctr. Joint Venture v. Pilgrim Enters., Inc.,
170 F.3d 536, 538 (5th Cir. 1999); see also Dardar v. Lafourche
Realty Co., 849 F.2d 955, 957 (5th Cir. 1988). An order is final
and appealable when it ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment. United
States v. Garner, 749 F.2d 281, 285 (5th Cir. 1985) (internal
quotation marks and citation omitted). A dismissal of claims
against some, but not all, parties is not a final appealable
judgment unless, pursuant to FED. R. CIV. P. 54(b), the district
court determines that there is no just reason for delay and directs
entry of judgment. See FED. R. CIV. P. 54(b); Tower v. Moss,
625 F.2d 1161, 1164 (5th Cir. 1980) (absent certification under
Rule 54(b), an order that adjudicates the rights and liabilities of
fewer than all parties is not a final appealable order).
The substitution order did not constitute a final order for
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purposes of 28 U.S.C. § 1291. Although the order had the effect of
dismissing claims against the individual federal defendants, it
left intact Fleming’s claims against the United States and the
remaining individual defendants. In addition, the district court
did not indicate any intent to certify the order as final for
purposes of Rule 54(b). Accordingly, the order was not final and
appealable. See Dillon v. Miss. Military Dep’t, 23 F.3d 915, 917-
19 (5th Cir. 1994).
There is no other statutory basis for appellate jurisdiction.
The district court’s order does not fall within any of the
appealable interlocutory orders set forth in 28 U.S.C. § 1292(a),
nor did the district court certify the order for immediate appeal
under the grounds set forth in 28 U.S.C. § 1292(b).
Fleming contends that the order is appealable under the
collateral order doctrine. The collateral order doctrine is a
jurisprudential exception to the final judgment rule, allowing
appeal of a non-final order if (1) the order conclusively
determines the issue in dispute, (2) the order resolves an
important issue completely separate from the merits, and (3) the
order is effectively unreviewable on appeal from a final judgment.
In re Grand Jury Proceedings, 43 F.3d 966, 969 (5th Cir. 1994).
All three requirements of the doctrine must be met, and “failure of
any one results in failure of jurisdiction.” Garner, 749 F.2d at
287.
Although we have not had occasion previously to address the
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collateral order doctrine in the specific context of an order
granting substitution of the United States under the Westfall Act,
we are not without guidance in this area. In Sarabyn, the district
court had denied the defendants’ motions for certification because
it found that the government officials were not acting within the
scope of their employment for FTCA purposes. Sarabyn, 129 F.3d at
762. We treated the denial of certification as a denial of
immunity to government employees, which is reviewable under the
collateral order doctrine. Id. at 764; see Mitchell v. Forsyth,
472 U.S. 511, 524-30 (1985) (denials of immunity are reviewable
under the collateral order doctrine because the defendant’s
immunity is effectively lost if the case is allowed to proceed to
trial).
Unlike a denial of immunity to a government employee, an order
granting immunity is not effectively unreviewable on appeal from a
final judgment; therefore, such an order does not fall within the
collateral order doctrine. See Burge v. Parish of St. Tammany,
187 F.3d 452, 467-68 (5th Cir. 1999); Thompson v. Betts, 754 F.2d
1243, 1246 (5th Cir. 1985). Employing that rationale in Kassuelke
v. Alliant Techsystems, Inc., 223 F.3d 929, 930-31 (8th Cir. 2000),
the Eighth Circuit held that an order substituting the United States
in place of individual defendants constituted an order granting
immunity, which was not immediately appealable under the collateral
order doctrine. See also Maron v. United States, 126 F.3d 317, 321
n.4 (4th Cir. 1997).
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Kassuelke is persuasive and consistent with this court’s
precedent. Just as the order denying Westfall Act certification in
Sarabyn constituted a denial of immunity, the district court’s order
in this case allowing substitution of the United States effectively
granted immunity to the individual defendants. Just as orders
granting immunity are not effectively unreviewable on appeal from
a final judgment, the district court’s order substituting the United
States as a defendant in place of the individual federal defendants
is not appealable under the collateral order doctrine. Similarly,
no other exception to the final judgment rule allowing immediate
appeal of “effectively unreviewable” orders is applicable. See
Garner, 749 F.2d at 290 & n.11.
Based on the foregoing analysis, we lack jurisdiction over
Fleming’s appeal and cannot review Fleming’s numerous allegations
against Judge Clark.2
As a final matter, it is necessary to address the inflammatory
tone and content of Fleming’s arguments to this court, which
overstep the bounds of professional conduct and zealous advocacy.
Fleming is a licensed attorney who has a professional
obligation to uphold the dignity of the judicial system and to
“temper his criticisms in accordance with professional standards of
conduct.” Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d
2Fleming has apparently not pursued the procedures for filing a
judicial misconduct complaint pursuant to this court’s rules governing such
complaints.
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1404, 1409 n.6 (5th Cir. 1994). That he is proceeding pro se does
not give him carte blanche to employ intemperate and abusive
language or to engage in ad hominem attacks on federal judges. See
Theriault v. Silber, 579 F.2d 302, 303 (5th Cir. 1978).
Accordingly, we caution Fleming that any similar conduct in the
future will invite the imposition of sanctions available to this
court.
APPEAL DISMISSED; SANCTIONS WARNING GIVEN.
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