Fleming v. United States

162 F. App'x 383
CourtCourt of Appeals for the Fifth Circuit
DecidedJanuary 13, 2006
Docket04-51081
StatusUnpublished
Cited by2 cases

This text of 162 F. App'x 383 (Fleming v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fleming v. United States, 162 F. App'x 383 (5th Cir. 2006).

Opinion

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 Ratch-ford, Kevin Epstein, Richard Simmons, and Henry Hobbs (the federal defendants). Fleming’s suit arises primarily out of an order issued by Judge 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 *385 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 defendants. Fleming seeks to appeal that order.

This court directed the parties to brief whether the district court’s order is ap-pealable. 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.CivP. 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 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 ap-pealable 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 ap-pealable 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.” Gamer, 749 F.2d at 287.

Although we have not had occasion previously to address the collateral order doctrine in the specific context of an order *386 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, 105 S.Ct.

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162 F. App'x 383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fleming-v-united-states-ca5-2006.