     Case: 15-50729      Document: 00513521685         Page: 1    Date Filed: 05/25/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit

                                                                                     FILED
                                    No. 15-50729                                 May 25, 2016
                                  Summary Calendar
                                                                                Lyle W. Cayce
                                                                                     Clerk
CAROLYN BARNES, individually and on behalf of her children,

              Plaintiff - Appellant

v.

KATHLEEN GITTEL, in her personal capacity; UNITED STATES OF
AMERICA,

              Defendants - Appellees



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:15-CV-298


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
       Pro se Plaintiff–Appellant Carolyn Barnes filed this action against
Defendant–Appellee Kathleen Gittel in Texas state court, alleging that Gittel,
among others, conspired to harm her. Because Gittel encountered Barnes only
as part of her work as a Census Bureau enumerator, the United States certified
that Gittel was acting within the scope of her employment when she



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                   No. 15-50729
encountered Barnes, substituted itself as defendant, and removed the action
to federal court. The district court held that Barnes’s action was against the
United States under the Federal Tort Claims Act, found that Barnes had failed
to exhaust administrative remedies as required by that Act, and dismissed
Barnes’s claims for lack of subject matter jurisdiction. Finding no error, we
AFFIRM the judgment of the district court.
            I. FACTUAL AND PROCEDURAL BACKGROUND
      In May 2010, Defendant–Appellee Kathleen Gittel was working as an
enumerator for the United States Census Bureau when pro se Plaintiff–
Appellee Carolyn Barnes threatened and fired shots at her. Gittel reported the
incident to Harold Poppa who, in turn, reported it to local police. Barnes was
later indicted for assaulting Gittel with a deadly weapon, convicted in state
court of aggravated assault, and sentenced to three years imprisonment. The
instant appeal arises out of a Texas state court suit, in which Barnes named
Gittel, Poppa, and others as defendants. Although Barnes did not clearly
identify the claims she raised, Barnes asserted, inter alia, that she had been
the victim of a widespread conspiracy and that Gittel had committed
“aggravated perjury to secure [Barnes’s] wrongful conviction” in exchange for
money. The case was removed to federal court under the Federal Employees
Liability Reform and Tort Compensation Act of 1988 (the “Westfall Act”), and
the United States was substituted as the party defendant. 1
      The United States and Gittel moved to dismiss Barnes’s action on several
grounds, and the district court referred this motion to a magistrate judge. The
magistrate judge found that the substitution of the United States as the
defendant had been proper and that the claims against the United States could


      1 The district court thereafter severed and remanded Barnes’s claims against all
defendants except Gittel, Poppa, and Lacey Loftin, who were Census Bureau employees.
Only Barnes’s claims against Gittel are before us on appeal.
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                                        No. 15-50729
not proceed unless Barnes had exhausted the administrative prerequisites for
filing suit under the Federal Tort Claims Act (“FTCA”). Because Barnes failed
to exhaust these administrative prerequisites and because the failure to
exhaust under the FTCA deprived the district court of jurisdiction to hear
Barnes’s claims, the magistrate judge recommended that Barnes’s claims be
dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1). On July 24,
2015, the district court adopted the magistrate judge’s recommendation and
dismissed Barnes’s claims. On August 3, 2015, while at least two motions were
still pending before the district court in this action, Barnes filed a notice of
appeal from the district court’s order adopting the magistrate judge’s
recommendation. Since Barnes filed that initial notice of appeal, the district
court has addressed the remaining motions and entered final judgment. 2
                         II. APPELLATE JURISDICTION
       Before addressing Barnes’s challenges on appeal, we begin by examining
whether we have appellate jurisdiction to hear those challenges. Appellate
jurisdiction was lacking at the time Barnes filed her initial notice of appeal
because the district court had not yet entered final judgment in this case. See
28 U.S.C. § 1291 (authorizing appellate jurisdiction over “final decisions of the
district courts”); see also Ray Haluch Gravel Co. v. Cent. Pension Fund of Int’l
Union of Operating Eng’rs & Participating Emp’rs, 134 S. Ct. 773, 779 (2014)
(“[A] ‘final decision’ is one that ends the litigation on the merits.”). 3 However,
because the district court has since entered final judgment in this case, we now




       2 The district court entered final judgment in this case on January 22, 2016. Barnes
filed a notice of appeal from the district court’s final judgment, and that appeal was
separately docketed. That appeal was dismissed on April 26, 2016, for want of prosecution
under Fifth Circuit Rule 42.
       3 Courts of appeals have jurisdiction to review only a small class of non-final decisions

by district courts, but the decision from which Barnes appealed did not fit into this class. See,
e.g., Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009).
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have jurisdiction over Barnes’s appeal even though her original notice of
appeal was filed prior to the entry of final judgment. 4 Sandidge v. Salen
Offshore Drilling Co., 764 F.2d 252, 255 (5th Cir. 1985) (finding appellate
jurisdiction from appeal of a non-final judgment where the district court’s
subsequent judgment effectively terminated the litigation).
        III. THE WESTFALL AND FEDERAL TORT CLAIMS ACTS
        On appeal, Barnes first argues that the district court erred by denying
her motion to remand this case to state court. We review a district court’s
denial of a motion to remand de novo. Bell v. Thornburg, 743 F.3d 84, 87 (5th
Cir. 2014). We find no error in the district court’s denial of this motion, as
federal jurisdiction was proper under the Westfall Act. That Act authorizes
the United States to certify that a federal employee was acting within the scope
of her employment, to remove the case to federal court, and to substitute itself
as defendant. See 28 U.S.C. § 2679(d)(1)–(2), (4); see also Osborn v. Haley, 549
U.S. 225, 229–30 (2007) (explaining the removal process under the Westfall
Act).
        The United States, through the Attorney General, properly certified
under the Westfall Act that Gittel was acting within the scope of her
employment. This certification “conclusively establish[es] [the] scope of office
or employment for purposes of removal” and “[u]pon certification . . . [the]
action . . . shall be removed . . . to the district court of the United States for the
district . . . embracing the place in which the action . . . is pending.” 28 U.S.C.




        4 Where a party’s notice of appeal is premature, this court may later acquire
jurisdiction if (1) the district court subsequently disposes of all remaining claims and (2) the
order appealed from would have been appealable if the district court had directed the entry
of a partial final judgment pursuant to Federal Rule of Civil Procedure 54(b). Miller v. Gorski
Wladyslaw Estate, 547 F.3d 273, 277 n.1 (5th Cir. 2008). The district court order from which
Barnes initially appealed would have been appealable had the district court directed the
entry of final judgment under Rule 54(b), so we now have jurisdiction to review that order.
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§ 2679(d)(2); accord Osborn, 549 U.S. at 231. “[O]nce certification and removal
are effected, exclusive competence to adjudicate the case resides in the federal
court, and that court may not remand the suit to the state court.” Osborn, 549
U.S. at 231. Because the Attorney General properly certified that Gittel was
acting within the scope of her employment, removal to the district court was
proper, and that court committed no error in declining to remand the case to
state court.
      Barnes next argues that the district court erred by allowing the United
States to be substituted as the party defendant under the Westfall Act. That
Act provides that “[u]pon certification by the Attorney General that the
defendant employee was acting within the scope of [her] . . . employment . . .
any civil action or proceeding commenced upon such claim . . . shall be deemed
an action against the United States . . . and the United States shall be
substituted as the party defendant.”        28 U.S.C. § 2679(d)(1).      Although
certification by the Attorney General conclusively establishes that an employee
was acting within the scope of her employment for the purposes of removal
jurisdiction, “[f]or purposes of substitution . . . the certification is judicially
reviewable.” White v. United States, 419 F. App’x 439, 442 (5th Cir. 2011)
(unpublished) (citing Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 434–36
(1995)).   “We review the district court’s legal conclusions of . . . scope-of-
employment issue[s] de novo,” and “[a] plaintiff who challenges the
Government’s certification has the burden to prove that the employee’s conduct
was not within the scope of [her] employment.” Counts v. Guevara, 328 F.3d
212, 214 (5th Cir. 2003).
      We agree with the district court that Barnes failed to carry her burden
in challenging the certification. In arguing that Gittel engaged in conduct
beyond the scope of her employment, Barnes pointed to only her own
speculative assertions of conspiracy.       However, as the magistrate judge
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                                        No. 15-50729
correctly noted, a Census Bureau incident report and state court records show
that Gittel was working as a Census Bureau enumerator when Barnes
assaulted her. Given the evidence before it, the district court committed no
error in rejecting Barnes’s speculations when it concluded that Gittel was
acting within the scope of her employment and substituted the United States
as the party defendant. 5 See White, 419 F. App’x at 443 (“[The plaintiff’s]
speculative allegations do not meet this burden.”).
       Given that Barnes’s case was properly in federal court and that the
United States was properly substituted as the party defendant, we turn to
Barnes’s argument that the district court improperly dismissed her claims for
lack of subject matter jurisdiction under Federal Rule of Civil Procedure
12(b)(1). When reviewing a district court’s dismissal for lack of subject matter
jurisdiction, we review that court’s legal conclusions de novo and its factual
findings for clear error. Young v. United States, 727 F.3d 444, 446 (5th Cir.
2013).
       Following certification, removal, and substitution, an action subject to
the Westfall Act proceeds as an action against the United States under the
FTCA and is subject to the FTCA’s “limitations and exceptions.” 28 U.S.C.
§ 2679(d)(4). Under the FTCA, “[a]n action shall not be instituted upon a claim
against the United States . . . unless the claimant shall have first presented
the claim to the appropriate Federal agency and [her] claim shall have been
finally denied by the agency in writing.”                  28 U.S.C. § 2675(a).            This
“requirement is a prerequisite to suit under the FTCA.” Life Partners Inc. v.
United States, 650 F.3d 1026, 1030 (5th Cir. 2011). Barnes has not presented


       5 The Supreme Court has instructed that “[i]mmunity-related issues [such as that at
issue here] . . . should be decided at the earliest opportunity.” Osborn, 549 U.S. at 253. Given
this guidance and the speculative and conclusory nature of Barnes’s assertions in challenging
the certification, the district court did not err in ruling on Barnes’s challenge without holding
an evidentiary hearing.
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                                       No. 15-50729
an administrative claim to any federal agency.                  Because Barnes has not
satisfied the FTCA’s “jurisdictional prerequisite,” the district court properly
dismissed her claims for lack of subject matter jurisdiction pursuant to Federal
Rule of Civil Procedure 12(b)(1). 6 Barber v. United States, No. 15-60614, 2016
WL 1253819, at *1 (5th Cir. Mar. 30, 2016) (citing Cook v. United States, 978
F.2d 164, 165–66 (5th Cir. 1992)).
                                   IV. CONCLUSION
       For the foregoing reasons, we AFFIRM the judgment of the district court.




       6  Barnes also ostensibly challenges the district court’s refusal to disqualify the
magistrate judge in this case. However, her opening brief contains no discernable argument
on this point, so she has waived it. See Yohey v. Collins, 985 F.2d 222, 224–25 (5th Cir. 1993)
(stating that arguments are abandoned by “failing to argue them in the body of [the] brief”);
see also Mapes v. Bishop, 541 F.3d 582, 584 (5th Cir. 2008) (“[E]ven pro se litigants must brief
arguments in order to preserve them.”).

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