Augustine v. Louisiana Department of Public Safety & Corrections

Case: 10-30592 Document: 00511308980 Page: 1 Date Filed: 12/01/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 1, 2010
No. 10-30592 Lyle W. Cayce
Summary Calendar Clerk
SHERMAN J. AUGUSTINE,
Plaintiff - Appellant
v.
LOUISIANA DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONS,
Louisiana State Penitentiary,
Defendant - Appellee
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:10-CV-171
Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Sherman J. Augustine appeals the district court’s decision to retain
jurisdiction over his federal claims. We lack jurisdiction over his appeal, and it
is therefore DISMISSED.
In January 2009, Augustine, a former employee of the Louisiana State
Penitentiary in Angola, brought suit in state court against his former employer
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 10-30592 Document: 00511308980 Page: 2 Date Filed: 12/01/2010
No. 10-30592
alleging violations of Louisiana employment and whistle-blower laws. In
February 2010, he sought leave to amend his petition, proposing to add two
claims under federal law. The state court granted leave to amend; Augustine
filed the amended petition.
Shortly thereafter, the State removed the action to federal court and
Augustine filed a motion to remand. The district court remanded Augustine’s
state law claims, but retained jurisdiction over the federal claims. Augustine
filed a notice of appeal specifying that he “is only appealing the denial to remand
the federal claims.”
“We must raise the issue of our appellate jurisdiction sua sponte, if
necessary.” Said v. Gonzales, 488 F.3d 668, 670-71 (5th Cir. 2007) (citation
omitted). Augustine asserts that we have appellate jurisdiction “under Title 28
United States Code, Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure,
as an appeal from an opinion from a motion to remand in the United States
District Court for the Middle District of Louisiana.”
Neither of the cited authorities gives us jurisdiction over Augustine’s
appeal. Our jurisdiction extends only to “appeals from . . . final decisions of the
district courts of the United States.” 28 U.S.C. § 1291. “[A]n order denying
remand of a case removed to federal court is not a final order within the meaning
of 28 U.S.C. § 1291,” and therefore “cannot be appealed unless certified by the
district court in accordance with 28 U.S.C. § 1292(b).” Melancon v. Texaco, Inc.,
659 F.2d 551, 552-53 (5th Cir. 1981) (citations omitted); see Aaron v. Nat’l Union
Fire Ins. Co., 876 F.2d 1157, 1160 (5th Cir. 1989).
The district court’s order retaining jurisdiction over Augustine’s federal
claims was not a final decision, and the district court did not certify the issue for
our review. We therefore lack jurisdiction to consider Augustine’s appeal.
DISMISSED.
2