Foster, James H. v. Hill, Kirk L.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2651
JAMES H. FOSTER,
Plaintiff-Appellee,
v.
KIRK L. HILL,
Defendant/Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 6175—Samuel Der-Yeghiayan, Judge.
____________
ARGUED FEBRUARY 12, 2007—DECIDED AUGUST 13, 2007
____________
Before KANNE, ROVNER, and SYKES, Circuit Judges.
KANNE, Circuit Judge. Kirk Hill appeals a decision from
the district court denying his petition to substitute the
United States as a defendant in his place under the
Westfall Act, 28 U.S.C. § 2679. Because we find that
we lack jurisdiction, the appeal is dismissed.
2 No. 06-2651
I. BACKGROUND
On March 5, 2002, while working out in the fitness
center at Naval Training Center Great Lakes in North
Chicago, Chief Hospital Corpsman Kirk Hill took a metal
weight bar, approached a stranger (plaintiff James Foster),
and beat him severely. He then replaced the weight bar
and walked out of the fitness center. He was arrested
that evening in his home. Foster brought suit in tort
against Hill in Illinois state court.
Hill filed a petition in the state court seeking to have
the United States substituted in his place under the
Westfall Act,1 28 U.S.C. § 2679(d)(3), on the grounds that
he was acting within the scope of his federal employment
when he attacked Foster. The Westfall Act provides that
when federal employees are sued in tort for actions that
the Attorney General determines were within the course
and scope of their employment, the suit is deemed to
be against the United States and the United States
“shall be substituted” as the party defendant. 28 U.S.C.
§ 2679(d)(1). If the Attorney General declines to certify
that the actions were within the scope of the employment,
the defendant may petition the trial court to make such a
finding. 28 U.S.C. § 2679(d)(3). If the United States is
substituted as the defendant, the remedy against the
United States is the exclusive remedy and any other action
(specifically, any action against the defendant in his or her
individual capacity) is precluded. 28 U.S.C. § 2679(b)(1).
1
Actually, the “Federal Employees Liability Reform and Tort
Compensation Act of 1988,” although for obvious reasons this
cumbersome name has been replaced by the shorthand of
“Westfall Act” because the legislation was passed with the
express purpose of overturning the result of Westfall v. Erwin,
484 U.S. 292 (1988). See Gutierrez de Martinez v. Lamagno, 515
U.S. 417, 425-26 (1995).
No. 06-2651 3
The United States removed the petition to the federal
courts as is permitted under 28 U.S.C. § 2679(d)(3). The
district court found that Hill was not acting within his
employment duties, dismissed the petition, and remanded
the case to the state court for further proceedings. Foster
v. Hill, No. 05 C 6175, 2006 WL 1430552 (N.D. Ill. May 17,
2006). Hill appeals. Because our recent circuit precedent
has established that we lack subject matter jurisdiction
over appeals such as this, we must dismiss the appeal.
II. ANALYSIS
It is the responsibility of a court to make an independent
evaluation of whether subject matter jurisdiction exists
in every case. Smith v. Am. Gen. Life & Accident Ins. Co.,
337 F.3d 888, 892 (7th Cir. 2003). At the time that this
case was briefed and argued, it was assumed that courts
of appeal had jurisdiction to hear appeals from denials of
Westfall Act immunity. See, e.g., Woodruff v. Covington,
389 F.3d 1117, 1124 (10th Cir. 2004); Taboas v. Mlynczak,
149 F.3d 576, 579 (7th Cir. 1998). But an intervening
circuit precedent requires a different outcome.
The Westfall Act requires that if the Attorney General
declines to certify that an employee was acting within
the scope of employment, and if the district court agrees,
then “the action or proceeding shall be remanded to the
State court.” 28 U.S.C. § 2679(d)(3). However, “[a]n order
remanding a case to the State court from which it was
removed is not reviewable on appeal or otherwise.” 28
U.S.C. § 1447(d). Given that the Westfall Act mandates
that the district court remand the case to the state courts
once it agrees that the defendant was not acting within
the scope of federal employment, the question before us
is whether the general bar against appellate review of
remand orders precludes review in this case.
4 No. 06-2651
It is settled law that § 1447(d) applies only to the
reasons for remand that are enumerated in 28 U.S.C.
§ 1447(c). Quackenbush v. Allstate Ins. Co., 517 U.S. 706,
711-12 (1996) (“[O]nly remands based on grounds specified
in § 1447(c) are immune from review under § 1447(d).”);
Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 127-28
(1995) (“[Section] 1447(d) must be read in pari materia
with § 1447(c), so that only remands based on grounds
specified in § 1447(c) are immune from review under
§ 1447(d).”); Thermtron Prods., Inc. v. Hermansdorfer, 423
U.S. 336, 346 (1976) (“[O]nly remand orders issued under
§ 1447(c) and invoking the grounds specified therein that
removal was improvident and without jurisdiction are
immune from review under § 1447(d).”) The reasons
for remand that are enumerated in § 1447(c) include
defects in removal procedure and lack of subject matter
jurisdiction. 28 U.S.C. § 1447(c). Accordingly, the Su-
preme Court recently reiterated that where, as here, there
is no hint of a defect in the removal procedures, then “the
remand is immunized from review only if it was based on
a lack of subject-matter jurisdiction.” Powerex Corp. v.
Reliant Energy Servs., Inc., 127 S.Ct. 2411, 2416 (2007).
If the Attorney General had certified that the acts
were within the scope of Hill’s employment and the dis-
trict court had disagreed with that conclusion, we would
have jurisdiction. See Osborn v. Haley, 127 S.Ct. 881, 892
(2007). If the district court had held that Hill’s actions
were within the scope of his employment (regardless of
whether the Attorney General agreed or disagreed) then
we would not have jurisdiction to hear an appeal of that
determination: it would not be a final order and therefore
not subject to interlocutory appeal. See, e.g., Theis v.
Smith, 827 F.2d 260 (7th Cir. 1987). And if the district
court had explicitly based its remand decision on a lack
of subject matter jurisdiction, even if incorrect, the deci-
sion would be immune from review as long as the juris-
No. 06-2651 5
dictional decision was “colorable.” Powerex, 127 S.Ct. at
2418. This case represents the final possibility, one which
we admit provides little case law that is directly on point.
The district court denied Hill immunity, and in most cases
the denial of immunity is subject to immediate appellate
review. Osborn, 127 S.Ct. at 892-93. But the district court,
as required by the Act, remanded the case to the state
courts so that the litigation could proceed, but did not
make any mention of a lack of subject matter jurisdiction.
This court recently had the opportunity to consider
a strikingly similar case. Daniels v. Liberty Mut. Ins. Co.,
484 F.3d 884 (7th Cir. 2007). In Daniels, the Attorney
General declined to certify that the acts of the defendant
were within the scope of federal employment, and the
district court agreed. Id. at 886-87. We dismissed the
appeal for lack of jurisdiction in light of 28 U.S.C.
§ 1447(d). Id. at 888. In Daniels, as in this case, the
district judge made no mention of § 1447(c) to justify the
decision to remand the case to the state courts, and did
not specify whether the remand was based on a lack of
subject matter jurisdiction, a defect in removal, or some
other ground not listed in § 1447(c). Foster v. Hill, No.
05 C 6175, 2006 WL 1430552 (N.D. Ill. May 17, 2006);
Daniels v. Liberty Mut. Ins. Co., No. 06 CV 213, 2006 WL
2644949 (N.D. Ind. Sep. 14, 2006).
In dismissing the appeal in Daniels, we likewise did not
specify whether our invocation of § 1447(d) was because
the remand was for a lack of subject matter jurisdiction or
for a defect in the removal process. As we noted above,
repeated decisions by the Supreme Court in Thermtron,
Things Remembered, Quackenbush and this term’s
Powerex decision have reiterated that these are the only
two permissible grounds for invoking § 1447(d)’s ban on
appellate review. But we did note in Daniels that “[t]he
Attorney General . . . removed the proceeding to federal
6 No. 06-2651
court, as 28 U.S.C. § 2679(d)(3) permits, so that a federal
judge could decide whether this decision is sound.”
Daniels, 484 F.3d at 886. This acknowledgment that
removal was proper, combined with the limitations on
§ 1447(d), allows us only one conclusion: that the result
in Daniels was premised on the conclusion that the dis-
trict court’s remand order was based on a lack of subject
matter jurisdiction, despite the fact that the district court
itself never stated such a conclusion.
Although this case is distinct from Daniels in the
underlying facts of the tort action, the jurisdictional
question is identical. In both cases, the Attorney General
declined to certify that the defendant’s actions were with-
in the scope of his employment. In both cases the district
court agreed. In both cases, the district court entered a
remand order that did not cite to § 1447(c) as the grounds
for remanding the decision, and was silent as to whether
the remand was based on a lack of subject matter jurisdic-
tion. Given that we construed such silence on the part of
the district court in Daniels to imply that the court
was tacitly remanding for lack of subject matter jurisdic-
tion, a contrary result here would be inconsistent.
We are well aware of the odd procedural posture that
this result will create as the case goes forward. The case
will now return to state court. But because the parties
have been prevented by statute from any appellate review
of the district court’s scope of employment decision, issue
preclusion cannot be invoked in the state court on the
question of whether Hill was acting within the scope of his
employment when he attacked Foster. See Kircher v.
Putnam Funds Trust, 126 S.Ct. 2145, 2156-57 (2006)
(“[W]hat a state court could do in the first place it may
also do on remand. . . . Collateral estoppel should be no
bar to such a revisitation of the . . . issue, given that
§ 1447(d) prevents the funds from appealing the District
Court’s decision.”); see also RESTATEMENT (SECOND) OF
No. 06-2651 7
JUDGMENTS § 28(1) (2007) (“[R]elitigation of the issue in a
subsequent action between the parties is not precluded
[when t]he party against whom preclusion is sought could
not, as a matter of law, have obtained review of the
judgment in the initial action.”). As we recently reminded
the defendant in Daniels, any argument that might have
been made on appeal in this court can now be made in
the state court on remand. Daniels, 484 F.3d at 888.
The nearly two years that this case has been pending
in various federal courts are, in many meaningful aspects,
a nullity. Congress has precluded this court from con-
sidering any appeal of a remand based on lack of subject
matter jurisdiction. Our circuit precedent in Daniels
establishes that when the Attorney General declines to
certify that actions were within the scope of federal
employment and the district court remands the case
without clarifying the grounds for the remand, then the
remand must be presumed by this court to be based on
lack of subject matter jurisdiction. The case now returns
to the Illinois courts where the state judge is not pre-
cluded from re-considering whether Hill’s actions were
within the scope of his employment. Of course, if the state
court disagrees with the district court’s findings, the
United States will be substituted (again) and the United
States can invoke removal to the federal courts (again).
This, of course, seems odd.
In the interim, a federal employee will now resume
defending litigation even though there is a chance that
the Westfall Act purports to grant him immunity from
suit. If we were permitted to consider that claim of immu-
nity, the question could be settled once and for all. But
whether this defendant should be immune from suit is
a question that Congress and our circuit precedent pre-
vent us from even considering. Meanwhile, the plaintiff
has waited five years for a legal remedy, which today is
no closer than it was in 2005 when the case was first
8 No. 06-2651
removed to the district court. As a recent concurring
opinion in the Supreme Court lamented in a slightly
different context, “the structure and wording of § 1447(d)
(2000 ed.) leave us no other choice. There is no latitude
for us to reach a different result. If it is true that the
statute as written and the judgment we issue today are
inconsistent with the intent and purpose Congress wanted
to express, then the immediate jeopardy [to a claim of
immunity] should justify urgent legislative action to enact
the necessary statutory revisions.” Powerex, 127 S.Ct. at
2421 (Kennedy, J., concurring).
III. CONCLUSION
Accordingly, the appeal is DISMISSED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—8-13-07