Jaskolski, Joseph v. Gonzales, Alberto R. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3508
RICK DANIELS and ANNA DANIELS,
Plaintiffs-Appellees,
v.
LIBERTY MUTUAL INSURANCE COMPANY, et al.,
Defendants,
and
JOSEPH JASKOLSKI and NATIONAL
INSURANCE CRIME BUREAU,
Defendants-Appellants.
____________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:06-CV-213—Rudy Lozano, Judge.
____________
ARGUED APRIL 12, 2007—DECIDED APRIL 20, 2007
____________
Before EASTERBROOK, Chief Judge, and RIPPLE and
SYKES, Circuit Judges.
EASTERBROOK, Chief Judge. This is another episode
in long-running litigation commenced by Rick and Anna
Daniels, who were acquitted of insurance fraud and now
seek damages from persons who proposed or assisted the
prosecution. The Danielses filed their suit in state court,
2 No. 06-3508
and two of the defendants—Joseph Jaskolski and National
Insurance Crime Bureau—would prefer to be in federal
court. But the claim arises under state law, and the
requirements of the diversity jurisdiction are not satisfied.
That has not deterred Jaskolski and the Bureau from
trying to have issues, if not the whole suit, resolved in
federal court. In 2003 they asked the federal court to
assume management of discovery, on the ground that
plaintiffs were probing too deeply into materials that had
been submitted to a federal grand jury. We rejected most
of their arguments and concluded that the litigation
should be returned to the state court’s control after a few
issues had been clarified. Jaskolski v. Daniels, 427 F.3d
456 (7th Cir. 2005).
That defeat led Jaskolski and the Bureau to demand
that the Attorney General certify that they had acted as
federal employees, and within the scope of that employ-
ment, to the extent they assisted the United States
Attorney. Such a certification would require the court to
dismiss them as defendants and to substitute the United
States in their stead; the litigation then would proceed
under the Federal Tort Claims Act. See 28 U.S.C. §2679(d)
(part of the FTCA known as the Westfall Act). The At-
torney General concluded that the standards for sub-
stitution had not been met—but he removed the proceed-
ing to federal court, as 28 U.S.C. §2679(d)(3) permits, so
that a federal judge could decide whether this decision is
sound. Section 2679(d)(3) provides:
In the event that the Attorney General has refused
to certify scope of office or employment under this
section, the employee may at any time before trial
petition the court to find and certify that the
employee was acting within the scope of his office
or employment. Upon such certification by the
court, such action or proceeding shall be deemed to
No. 06-3508 3
be an action or proceeding brought against the
United States under the provisions of this title and
all references thereto, and the United States
shall be substituted as the party defendant. A copy
of the petition shall be served upon the United
States in accordance with the provisions of Rule
4(d)(4) of the Federal Rules of Civil Procedure. In
the event the petition is filed in a civil action or
proceeding pending in a State court, the action or
proceeding may be removed without bond by the
Attorney General to the district court of the United
States for the district and division embracing the
place in which it is pending. If, in considering the
petition, the district court determines that the
employee was not acting within the scope of his
office or employment, the action or proceeding
shall be remanded to the State court.
The district court concluded that the Attorney General’s
decision is correct—that Jaskolski was not acting as a
federal employee, making it irrelevant whether his acts
were within the scope of that nonexistent employment.
2006 U.S. Dist. LEXIS 65896 (N.D. Ind. Sept. 14, 2006). As
for the Bureau: a corporation could not be a federal “em-
ployee” on any understanding. The judge then remanded
the proceeding to state court, as the last sentence of
§2679(d)(3) requires.
Jaskolski and the Bureau appealed, and the Danielses
have moved to dismiss that appeal under 28 U.S.C.
§1447(d), which provides: “An order remanding a case to
the State court from which it was removed is not
reviewable on appeal or otherwise”. We deferred action
while Osborn v. Haley, 127 S. Ct. 881 (2007), was under
advisement, then received supplemental briefs concern-
ing the effect of the Supreme Court’s decision. Having
considered these submissions, we conclude that §1447(d)
as understood in Osborn makes the remand order unre-
viewable.
4 No. 06-3508
Osborn started out in state court. Plaintiffs acknowl-
edged that Haley, the defendant, was a federal employee.
The Attorney General removed the suit and certified
that Haley had acted within the scope of his federal
employment, which automatically substituted the United
States as the defendant. The plaintiff asked for review,
and the district court held that the Attorney General had
erred—that Haley should remain the defendant in his
personal capacity—and remanded the case to state court.
That remand was flagrantly erroneous, for the final
sentence of §2679(d)(2) says that “certification [by] the
Attorney General shall conclusively establish scope of
office or employment for purposes of removal” (emphasis
added). Once the Attorney General makes a scope-of-
federal-employment certification, the suit must be re-
solved on the merits in federal court even if the certi-
fication is mistaken.
Haley appealed, and the Supreme Court had to decide
whether §1447(d) blocked review. Six Justices concluded
that §2679(d)(2) must be treated as an exception to
§1447(d) to prevent district judges from nullifying an
Act of Congress. The Court discussed at some length
“[t]he [Westfall] Act’s distinction between removed cases in
which the Attorney General issues a scope-of-employment
certification and those in which he does not” (127 S. Ct. at
894). In the former situation, §2679(d)(2) supersedes
§1447(d) because the district court has no authority to
remand, no matter what the judge thinks about the
propriety of the certification. In the latter, remand fol-
lows from the decision that the person seeking certifica-
tion is not entitled to it. The district judge’s authority to
review the Attorney General’s non-certification decision
under §2679(d)(3) includes authority (indeed, an obliga-
tion) to remand. The Court wrapped up: “Only in the
extraordinary case in which Congress has ordered the
intercourt shuttle to travel just one way—from state to
No. 06-3508 5
federal court—does today’s decision [limiting the scope of
§1447(d)] hold sway.” 127 S. Ct. at 896.
When the Attorney General declines to make a scope-of-
federal-employment certification, the case properly may
move in both directions: to federal court for review of the
decision, then back to state court if the district judge
finds that the Attorney General acted within his discre-
tion. The “extraordinary case” of a statute forbidding
remand does not obtain.
Jaskolski contends that the distinction between the
two situations is unconstitutional, but that argument is
a non-starter. Congress had a rational basis for providing
that litigation be resolved in federal court once the At-
torney General concludes (correctly or not) that the
defendant acted within the scope of federal employment. In
the absence of such a decision, however, the case presump-
tively belongs in state court, and appellate review may be
limited in order to prevent just what has happened here:
prolonged litigation about where litigation will occur, to
the detriment of speedy decision on the merits.
Nonetheless, the Attorney General insists, we must
review the district court’s finding about “employee” status
even if we cannot review the remand order. This line of
argument relies on Osborn’s holding that a district court’s
resolution of a dispute about certification is a collateral
order, “final” under the doctrine of Cohen v. Beneficial
Industrial Loan Corp., 337 U.S. 541 (1949). See Osborn,
127 S. Ct. at 892-93.
Although finality is a necessary condition of appellate
review (for no statute authorizes review of interlocutory
decisions in this situation), finality is not a sufficient
condition for appellate review. That’s why, immediately
after deciding that the decision was “final”, the Court
asked in Osborn whether §1447(d) blocked review of the
order. If it does, then the appeal must be dismissed. An
6 No. 06-3508
appellate tribunal cannot review the statements in a
district judge’s opinion; that would be an advisory opinion.
Only the district court’s “final decision” is open to review.
And that “decision” is the order remanding the suit to state
court. When §1447(d) applies, the court must dismiss the
appeal without discussing whether the district court made
a mistake. See Kircher v. Putnam Funds Trust, 126 S. Ct.
2145 (2006). See also In re Mutual Fund Market-Timing
Litigation, 468 F.3d 439 (7th Cir. 2006) (the decision on
remand from Kircher). Neither Jaskolski nor the Attorney
General has brought to our attention any decision in the
history of the Supreme Court holding that an appellate
tribunal may (let alone must) render an opinion about the
merits of some dispute when it lacks authority to alter the
decision supposedly being reviewed.
It is logically possible for Jaskolski to be a federal
“employee” but not to have acted within the scope of his
employment. That the remand could be right even if the
district judge was wrong about the “employee” issue does
not, as the Attorney General supposes, entitle us to opine
on the subject notwithstanding §1447(d). It just rein-
forces the point that anything we could say would be
advisory, because it would not affect the district court’s
order. The Attorney General does not think Jaskolski a
federal employee, and even if we were to take Jaskolski’s
side of that dispute §1447(d) would prevent us from
changing the judgment. Discussion would be so much hot
air.
Waco v. United States Fidelity & Guaranty Co., 293 U.S.
140 (1934), on which Jaskolski and the Bureau rely for the
proposition that an appellate court may address the
substantive issues even if the remand is unreviewable,
does not support that proposition. The holding of Waco is
that, when one case presents two distinct claims for relief,
and the district court finally resolves one while remanding
the other, the claim that was not remanded may be
No. 06-3508 7
appealed within the federal system. Jaskolski and the
Bureau do not propose to appeal a separate claim for
relief; they seek review of an issue that arises in (and
potentially matters to) a claim that arises under state
law and has been remanded to state court. Waco is irrele-
vant.
According to Jaskolski and the Bureau, failure to supply
appellate review of the Attorney General’s non-certification
decision would violate the due process clause of the fifth
amendment. Yet the Supreme Court has never held that
there is a constitutional right to appellate review in civil
litigation. Not that §1447(d) deprives anyone of
an opportunity for further review. It simply allocates
litigation between state and federal tribunals and cur-
tails the delay that (effectively) interlocutory appellate
review can create. The decision is “final” under Cohen
but the posture is nonetheless interlocutory: remand
means that the suit is ongoing. As we reminded Jaskolski
the last time, state courts are competent to resolve ques-
tions of federal law. 427 F.3d at 459. Jaskolski and the
Bureau may pursue on appeal in state court any argu-
ment they would have made in this court. If the Court of
Appeals or the Supreme Court of Indiana concludes that
the Attorney General abused his discretion, then the
United States would be substituted as a defendant and
the case would return to federal court. And if defendants’
contentions are finally rejected by Indiana’s judicial
system, they may petition for a writ of certiorari under
28 U.S.C. §1257(a).
The appeal is dismissed for want of jurisdiction.
8 No. 06-3508
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-20-07