William Burleigh, IV v. Kenneth James, et a
684 F. App'x 412
| 5th Cir. | 2017Background
- Kenneth James, driving for LBM, Inc. (a contractor for the U.S. Army), allegedly caused a car accident with William and Kandace Burleigh.
- The Burleighs sued James, LBM, and its insurer in Louisiana state court for state-law torts; James removed to federal court claiming he was a federal employee and FTCA jurisdiction applied.
- The Attorney General declined to certify James as a federal employee under 28 U.S.C. §2679(d); James filed a third-party demand seeking substitution of the United States as a defendant and the United States moved to dismiss for lack of subject-matter jurisdiction.
- A magistrate judge found James was an independent contractor (not a federal employee) and recommended remand to state court; the district court adopted the recommendation and remanded.
- In the same order the district court also entered a final judgment dismissing the United States with prejudice.
- The Fifth Circuit held it lacked jurisdiction to review the remand order and concluded the district court had no authority to dismiss the United States with prejudice, so it ordered dismissal of the U.S. without prejudice and left the remand intact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether federal court had jurisdiction under FTCA (employee v. independent contractor) | Burleighs: James was not a federal employee; FTCA does not apply; remand required | James: He was a federal employee acting within scope, so FTCA applies and removal was proper | Court did not reach merits because remand order is not reviewable; magistrate/district found James not a federal employee and remanded |
| Whether the remand order is appealable | Burleighs: remand is proper and not appealable | James: attempted substitution of U.S. makes this a removable federal-defendant situation warranting review | Court: 28 U.S.C. §1447(d) bars review of remand orders except narrow §1442 cases; this is not reviewable |
| Whether substitution/joinder of the United States made the case removable under §1442 | James: United States should be substituted as defendant under FTCA and case is effectively against the U.S. | Burleighs: They did not sue the U.S.; substitution was improper given no AG certification | Court: This was not a §1442 case in disguise; attempted joinder/substitution did not create an exception to §1447(d) |
| Whether the district court could dismiss the U.S. with prejudice after remanding | Burleighs: dismissal with prejudice was improper after remand | United States: sought dismissal for lack of jurisdiction | Court: District court lacked jurisdiction to enter a final, with-prejudice dismissal; remand and dismissal with prejudice inconsistent—vacated prejudice and instructed dismissal without prejudice |
Key Cases Cited
- Mitchell v. Carlson, 896 F.2d 128 (5th Cir. 1990) (§1447(d) bars review of remand orders)
- Brooks v. Raymond Dugat Co. L C, 336 F.3d 360 (5th Cir. 2003) (dismissal with prejudice is a final judgment on the merits)
- Boudloche v. Conoco Oil Corp., 615 F.2d 687 (5th Cir. 1980) (a court without jurisdiction cannot render judgment on the merits)
- Mills v. Harmon Law Offices, P.C., 344 F.3d 42 (1st Cir. 2003) (a federal court lacking jurisdiction under §1447(c) cannot dismiss the claim on the merits)