Sean T. Haddon v. United States

68 F.3d 1420, 314 U.S. App. D.C. 369, 1995 WL 642686

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 14, 1996
• Docket: 94-5250
• Status: Published

Opinions

SENTELLE, Circuit Judge,

dissenting:

Although I concede that we are bound by the Supreme Court’s decision in Gutierrez de Martinez v. Lamagno, — U.S. -, 115 5.Ct. 2227, 132 L.Ed.2d 375 (1995), a binding that I find not terribly comfortable, I nonetheless am unable to join the conclusion of my colleagues.

First, as to the merits decision that the conduct alleged falls outside the scope of employment under District of Columbia (“D.C.”) law, I would reach the opposite conclusion. I do not find the state of D.C. law as clear as my colleagues do. While I agree that the D.C. courts, and this Court applying D.C. law, have paid lip service to the principles Of the RESTATEMENT (SECOND) OF AGENCY (1957), I cannot discern that D.C. law has used those principles to draw a line demarcating scope of employment outside of which the present conduct falls. While I agree that the electrician’s conduct in allegedly threatening his co-employee was not “of the kind” that he was employed to perform, Maj. op. at 6, neither was the mattress delivery man in Lyon v. Carey, 533 F.2d 649 (D.C.Cir.1976), employed to rape his customers. Nonetheless, in that case we upheld a jury verdict against the employer on the theory that “[t]he dispute arose out of the very transaction which had brought [the deliveryman] to the premises.” Id. at 652. Likewise, I do not think that the laundromat employee in Johnson v. Weinberg, 434 A.2d 404 (D.C.1981), was performing work of the kind for which laundromat clerks are hired when he shot a customer. Again, it was only the fact that “[t]he assault arose out of the transaction” which brought the tortfeasor and the victim to the same premises coupled with the fact that the shooting “was triggered by a dispute over the conduct of the employer’s business” that led the D.C. Court of Appeals to hold that the jury could find the shooting incidental to employment. In the present ease, the alleged tortfeasor and the alleging victim were at the White House at the same time only because their employment brought them there. The dispute arose out of the business of their employer in as true a sense as did the disputes in either Johnson or Lyon. I would therefore decide this case consistently with those cases. I hasten to add that I am not convinced that those two cases are properly decided, but under Erie R. Co. v. Tompkins, 304 U.S. 64, 74-80, 58 S.Ct. 817, 820-823, 82 L.Ed. 1188 (1938), we ask not whether the declared law of the place is right, we simply rightfully defer to it.

I also am not convinced that we rule rightly when we direct the District Court to remand this case to the Superior Court from whence it came. I agree with the Third Circuit in Aliota v. Graham, 984 F.2d 1350 (3d Cir.), cert. denied, — U.S. -, 114 S.Ct. 68, 126 L.Ed.2d 37 (1993), that the certification which underlay the original removal “conclusively establish[ed]” subject matter jurisdiction for purposes of 28 U.S.C. § 1447. I likewise agree with the Fourth Circuit that the general law of remand as governed by 28 U.S.C. § 1447, entitled “Procedure after removal generally,” instructs that the fact of “the federal court ultimately rejecting] the federal defense that supported removal ... does not mean that it thereby loses subject matter jurisdiction over the removed action.” Jamison v. Wiley, 14 F.3d 222, 239 (4th Cir.1994). While the majority is of course correct that we have a “responsibility to construe statutes to avoid constitutional questions,” Maj. op. at 1427, citing United States v. X-Citement Video, Inc., — U.S.-,- — , 115 S.Ct. 464, 471-72, 130 L.Ed.2d 372 (1994), this does not mean we should misconstrue a statute in order to avoid the constitutional question. Because I think the Third and Fourth Circuits have construed the two possibly relevant removal and remand statutes correctly and consistently, I would find the constitutional question unavoidable. Because the majority has saved me that inevitability, I will not attempt to answer today the question that will inevitably arise another day under 28 U.S.C. § 1447 or under 28 U.S.C. § 1367 (“Supplemental jurisdiction”).

I hasten to add that I think that both questions upon which I dissent are exceptionally close ones. I do not find the state of the District of Columbia’s law on the scope of employment to be so clear that I am plainly right; I simply see it as so unclear that I cannot conclude that the Attorney General and the District Court erred in reaching the conclusion opposite of that of the majority. As to the remand question, as the majority notes, Maj. op. at 1423, the Supreme Court, insofar as we are able to discern from Gutierrez, would divide four to four with the position of Justice O’Connor not yet stated.