Friday, April 20, 2007

1447(d) after Osborn v. Haley

Today, in Jaskolski, the Seventh Circuit distinguished the Supreme Court's recent decision in Osborn v. Haley and dismissed an appeal from a Westfall-Act-related remand order under 1447(d).  In Osborn, The Supreme Court held that in removed cases, once the Attorney General issues a scope-of-employment certification, a district court has no authority to remand the case, even if it rejects the certification.  And such a remand is reviewable on appeal because the Westfall Act creates an exception to 1447(d) when the AG issues the certification.  Jaskolski was also a state-court suit, but the AG refused to certify that defendants were acting in the scope of employment.  Rather than certifying and removing, the AG refused to certify and removed under 28 U.S.C. s2679(d)(3) to allow the district court to review the refusal to certify.  The district court agreed with the AG, remanded the case, and the defendants appealed.  Writing for the court, Judge Easterbrook distinguished Osborn and wrote:

[Osborn drew a] distinction between removed cases in which the Attorney General issues a scope-of-employment certification and those in which he does not”  In the former situation, §2679(d)(2) supersedes §1447(d) because the district court has no authority to remand, no matter what the judge thinks about the propriety of the certification. In the latter, remand follows from the decision that the person seeking certification is not entitled to it. The district judge’s authority to review the Attorney General’s non-certification decision under §2679(d)(3) includes authority (indeed, an obligation) to remand. The Court wrapped up: “Only in the extraordinary case in which Congress has ordered the intercourt shuttle to travel just one way—from state to federal court—does today’s decision [limiting the scope of §1447(d)] hold sway.” 

When the Attorney General declines to make a scope-of-federal-employment certification, the case properly may move in both directions: to federal court for review of the decision, then back to state court if the district judge finds that the Attorney General acted within his discretion. The “extraordinary case” of a statute forbidding remand does not obtain. -RR

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