
USCA1 Opinion

	




        June 27, 1994           [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2395                                      JOHN NIKAS,                                Plaintiff, Appellant,                                          v.                               MICHAEL QUINLAN, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                             Torruella, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            John Nikas on brief pro se.            __________            Donald  K.  Stern,  United  States  Attorney,  and Mary  Elizabeth            _________________                                  _______________        Carmody,  Assistant United States Attorney, Senior Litigation Counsel,        _______        on brief for appellees.                                 ____________________                                 ____________________                      Per  Curiam.   Plaintiff-appellant John Nikas  is a                      ___________            Massachusetts inmate  who began  serving  his sentence  in  a            state correctional institution but was later transferred to a            federal prison.   In  1992, while still  in federal  custody,            Nikas brought this pro se  suit in the Massachusetts Superior                               ___ __            Court alleging various violations  regarding state-to-federal            transfer  and  classification  procedures,  as  well  as  his            continuing federal  confinement.   The Superior  Court docket            indicates that  the  case,  Nikes (sic)  v.  Vose,  Commr  of                                        _____            ________________            Corrections, et  al.,  No. 92-01988,  was filed  on April  1,            ____________________            1992.     The  fourteen   named  defendants  fell   into  two            categories:    Vose, et  al,  (seven  state defendants),  and            Quinlan, et  al, (seven  federal defendants).   On August  3,            1992,  the United  States, acting  on behalf  of Quinlan  and            federal defendant Keohane --  both were, at the time  of acts            alleged in the complaint, in the employ of the Federal Bureau            of  Prisons --  removed  the case  to federal  district court            pursuant  to  28 U.S.C.     1442(a)(1),  the general  federal            officer removal statute.1                                            ____________________            1.  Section 1442 provides in pertinent part:            (a) A civil  action or  criminal prosecution  commenced in  a            State  court against  any  of the  following  persons may  be            removed  by them to the  district court of  the United States            for the district  and division embracing the place wherein it            is pending:                   (1)  Any  officer of  the  United  States or  any                 agency thereof, or person acting under him, for any                 act under color of such office or on account of any                 right, title or authority  claimed under any Act of                 Congress  for the  apprehension  or  punishment  of                 criminals . . . .                                                           (continued...)                                         -2-                      The  removal  petition  was  captioned:   Nikas  v.                                                                _____            Quinlan,  et al.,  and the case  was docketed as  such in the            ________________            district court.   On October 5, 1992,  the federal defendants            moved to  dismiss, and,  on  October 21,  1992, the  district            court endorsed the motion as follows:                           Motion  to  Dismiss is  granted                           for insufficiency of service of                           process.  Case is closed.            Nikas' intervening motion (captioned  Nikas v. Vose, et al.),                                                  _____    ____________            filed October  16, 1992,  objecting to an  earlier procedural            order  and demanding that the case be remanded to state court            on  abstention grounds, was not ruled upon.  Judgment entered            on  all claims for the federal defendants and this appeal was            taken by Nikas.                      Although  we  see  no impropriety  in  the  removal            itself, we do  not reach the  merits of the appeal  since, as            the above  recitation suggests, the judgment  of the district            court   is  not   final  and   this  court   lacks  appellate            jurisdiction.     When   the  United  States   exercised  its                                            ____________________            1.  (...continued)            28 U.S.C.     1441(a)(1).    Since  Nikas  sued  the  federal            officers solely in their individual capacities, the complaint            was  subject to  removal under    1442(a)(1).   See  Conjugal                                                            ___  ________            Partnership v. Conjugal Partnership,      F.3d     , No.  93-            ___________    ____________________  ____      ____            1404, slip op. at 11 (1st Cir. May  4, 1994).  In addition to            granting  independent  jurisdiction  over  state-court  cases            involving federal officers, a   1442(a)(1) removal to federal            court  creates  ancillary jurisdiction  over  the non-federal            elements of  the controversy.  IMFC  Professional Services v.                                           ___________________________            Latin American  Home  Health, 676  F.2d  152, 158  (5th  Cir.            ____________________________            1982).                                           -3-            prerogative under    1442(a)(1), the  entire case,  embracing            all claims against all  parties, federal and non-federal, was            transferred to  federal court.   Polyplastics v.  Transconex,                                             ____________     __________            713 F.2d  875, 877 (1st Cir. 1983);  Murphy v. Kodz, 351 F.2d                                                 ______    ____            163, 166-67 (9th Cir. 1965); see also Arango v. Guzman Travel                                         ___ ____ ______    _____________            Advisors,  621 F.2d  1371, 1377-78  (5th Cir.  1980) (removal            ________            under   1441(d) "carried with it the remaining parties in the            state proceeding").  This jurisdiction was not  lost when the            federal defendants  were dismissed.  See Jamison v. Wiley, 14                                                 ___ _______    _____            F.3d 222,  239 (4th  Cir. 1994); IMFC  Professional Services,                                             ___________________________            676 F.2d  at 159; Watkins v.  Grover, 508 F.2d 920,  921 (9th                              _______     ______            Cir.  1974); Murphy, 351 F.2d  at 167.   The state defendants                         ______            remained before the district court until, in the exercise  of            its  discretion, the  court  either  addressed the  ancillary            claims  or remanded  the case  to the  Superior Court.   IMFC                                                                     ____            Professional Services, 676  F.2d at 160; Watkins, 508 F.2d at            _____________________                    _______            921;  Murphy,  351  F.2d  at   168;  cf.  Brough  v.   United                  ______                         ___  ______       ______            Steelworkers of  America, 437 F.2d  748, 750 (1st  Cir. 1971)            ________________________            (although district  court did not consider  whether to remand            or entertain ancillary matters,  state court claims involving            solely issues of local law  were subject to remand); District                                                                 ________            of Columbia v.  Merit Systems Protection  Bd., 762 F.2d  129,            ___________     _____________________________            133 (D.C. Cir. 1985) (same).                      Since   the  district   court   did  not   issue  a            certification pursuant to 28 U.S.C.   1292(b) with respect to                                         -4-            its  dismissal order, that order is not final under 28 U.S.C.              1291 as it did not settle the rights and liabilities of all            parties.  Fed. R. Civ. P.  54(b).  Further, under Rule 54(b),            any such order is potentially "subject to revision at anytime            before  the entry of judgment adjudicating all the claims . .            . of all  the parties."  Nor  do we perceive any  irreparable            harm from  the denial  of appellate  review until the  entire            case  is adjudicated.   Cohen v.  Beneficial Loan  Corp., 337                                    _____     ______________________            U.S.  541, 546 (1949).   We think it  preferable, noting that            Nikas'  motion  to remand  remains  pending  below, that  the            district  court in the first instance, decide whether to hear            the case or remand to state court.2                      Consequently,  lacking a  final  judgment,  we  are            without a jurisdictional basis to decide this appeal.                      Appeal dismissed.                      ________________                                            ____________________            2.  Discretionary remand has  been considered the  preferable            course when the federal predicate is eliminated from the case            in the early stages of litigation.  Arango, 621 F.2d at 1376-                                                ______            77 n.6.                                         -5-
