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Flohr v. Mackovjak

May 31, 1996

STEVEN W. FLOHR; SUSAN FLOHR, PLAINTIFFS-APPELLEES,
v.
JOSEPH MACKOVJAK, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Alabama. (No. CV-93-L-1246-NE). Seybourn H. Lynne, Judge.

Before Tjoflat, Chief Judge, Barkett, Circuit Judge, and Clark, Senior Circuit Judge.

Author: Tjoflat

TJOFLAT, Chief Judge:

This case involves a federal employee who was sued in state court for a negligent act committed while he was acting within the scope of his employment. The employee removed the case to district court and, represented by the United States Attorney, moved the court to substitute the United States as the party defendant. See 28 U.S.C. § 2679(d) (1994). The district court denied the motion to substitute and remanded the case to the state court. Because we conclude that the court erred in denying substitution, we reverse the denial of the motion to substitute.

I.

The facts are not in dispute. Lt. Colonel Steven W. Flohr was an officer of the United States Army stationed at the Redstone Arsenal in Huntsville, Alabama. Joseph Mackovjak was a civilian engineer working for the Department of the Army at the Redstone Arsenal. In May, 1992, Flohr, Mackovjak, and a third man were given a week-long temporary duty assignment to attend a conference in Hawthorne, California. The Army gave the men a per diem allowance for their expenses, including the cost of meals. Flohr obtained a rental car for their use at government expense; Mackovjak was also authorized to drive the car. There were no restrictions on their after-hours use of the rental car.

At around 4:00 p.m. on May 19, after a day at the conference, the three men returned to their hotel, changed clothes, and then drove to a restaurant in Redondo Beach for dinner. After dinner, at 8:22 p.m., as he was driving the rental car back to the hotel, Mackovjak made a left turn in front of oncoming traffic. The car was struck broadside and Flohr sustained injuries.

On May 17, 1993, Flohr and his wife brought a negligence action against Mackovjak in the Circuit Court of Madison County, Alabama. On June 21, Mackovjak, acting through a private attorney, removed the case to the United States District Court for the Northern District of Alabama. The case was removed pursuant to 28 U.S.C. § 1442(a)(1) on the ground that Mackovjak was an officer of the United States Air Force.*fn1 The appellees, correctly arguing that Mackovjak was not an Air Force officer, moved the district court to remand the case back to state court. Mackovjak opposed the motion to remand on the ground that the removal was proper under section 1442(a)(1) because Mackovjak was an "employee of the Department of the Army ... acting "under color of office' at the time of the incident."*fn2

Because Mackovjak realized that the appellees' claims might be covered by the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, he eventually performed the acts necessary to be represented by the United States Attorney for the Northern District of Alabama, as required by 28 U.S.C. § 2679(c).*fn3 On July 30, the United States Attorney moved the district court to substitute the United States as the party defendant, pursuant to 28 U.S.C. § 2679(d).*fn4 To that end, the United States Attorney certified that Mackovjak was acting "within the scope of his office or employment at the time of the incident out of which the claim arose." 28 U.S.C. § 2679(d)(1). Section 2679(d)(1) provides that upon such certification the tort claim "shall be deemed an action against the United States under the provisions of [title 28 of the United States Code] and all references thereto, and the United States shall be substituted as the party defendant." However, on August 10, the appellees moved to strike the United States Attorney's certificate on the ground that Mackovjak was not acting within the scope of his employment at the time of the accident, and asked the court to deny the motion to substitute the United States and to remand the case to state court.

On October 7, after a pretrial conference, the district court granted the appellees' motion to strike the certificate, denied the appellant's motion to substitute, and ordered the case remanded to state court on the ground that the district court was "without subject matter jurisdiction of this matter."*fn5 Mackovjak now appeals the denial of his motion to substitute and the order of remand.*fn6

II.

A.

We consider first whether we have jurisdiction over this appeal. With one exception not relevant here, "an 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). It has long been the case, however, that an order precedent to and separate from an order of remand is itself appealable. See City of Waco v. United States Fidelity & Guaranty Co., 293 U.S. 140, 143, 55 S. Ct. 6, 7, 79 L. Ed. 244 (1934). In Loftin v. Rush, we reviewed a district court's order dismissing a claim against the United States and remanding the pendent claims against the remaining defendants to state court on the ground that "in logic and in fact the decree of dismissal preceded that of remand and was made by the District Court while it had control of the cause." 767 F.2d 800, 803 (11th Cir. 1985) (quoting City of Waco, 293 U.S. at 143, 55 S. Ct. at 7). For the same reason, the district court's denial of substitution in this case is appealable despite the fact that the case has been remanded to state court. Our resolution of this issue in the context of a substitution order is in accord with the decisions of several other courts of appeals. See Kimbro v. Velten, 308 U.S. App. D.C. 134, 30 F.3d 1501, 1503 (D.C.Cir. 1994); Jamison v. Wiley, 14 F.3d 222, 233 (4th Cir. 1994); Aliota v. Graham, 984 F.2d 1350, 1353 (3d Cir. 1993); Mitchell v. Carlson, 896 F.2d 128, 132-33 (5th Cir. 1990).

We may thus take jurisdiction over Mackovjak's appeal, provided that the denial of his motion to substitute is a "final order" within the terms of 28 U.S.C. § 1291. Under the collateral order doctrine of Cohen v. Beneficial Indus. Loan ...


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