                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                       January 13, 2006

                                                                Charles R. Fulbruge III
                                                                        Clerk
                               No. 04-51081
                             Summary Calendar



                             JOHN T. FLEMING,

                                                     Plaintiff-Appellant,

                                    versus

                  UNITED STATES OF AMERICA; ET AL.,

                                                                Defendants,

           LEIF M. CLARK; NANCY RATCHFORD; KEVIN EPSTEIN;
                    RICHARD SIMMONS; HENRY HOBBS,

                                                    Defendants-Appellees.

                         --------------------
            Appeal from the United States District Court
                  for the Western District of Texas
                         USDC No. 5:04-CV-641
                         --------------------

Before JONES, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Texas attorney John T. Fleming, appearing pro se, filed suit

in Texas state court against numerous individuals, including United

States Bankruptcy Judge Leif M. Clark and several United States

Bankruptcy Trustees, including Nancy Ratchford, Kevin Epstein,

Richard   Simmons,    and   Henry    Hobbs   (the   federal    defendants).

Fleming’s suit arises primarily out of an order issued by Judge


     *
            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opinion should not be published and is not precedent except under the limited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.
Clark that     purported      to       disbar    Fleming     from     practice         in    the

Bankruptcy Court for the Western District of Texas and prohibited

Chapter 13 bankruptcy trustees from distributing attorneys’ fees to

Fleming in cases in which he represented debtors.1                         The suit also

named additional defendants, including three of Fleming’s clients.

      The   federal       defendants        removed    the    case    to    the     Western

District of Texas and subsequently filed a notice substituting the

United States as a defendant, pursuant to the Federal Tort Claims

Act (FTCA), as amended by the Westfall Act, 28 U.S.C. § 2679.                                The

Westfall Act provides individual federal employees with immunity

from certain tort claims and allows substitution of the United

States as a defendant upon certification by the Attorney General or

his   designee     that    the    employees       were   in     the   scope       of    their

employment at the time of the tortious conduct.                            See 28 U.S.C.

§ 2679(b); Rodriguez v. Sarabyn, 129 F.3d 760, 764 (5th Cir. 1997).

In accordance with the authority granted by 28 C.F.R. § 15.4, the

Chief of the Civil Division for the Western District of Texas

certified that the federal defendants were at all relevant times

acting    within    the    scope       of   their     federal    employment.                Over

Fleming’s    objection,          the     district      court     entered       an       order

substituting the United States as a defendant in place of the

federal defendants and dismissing all claims against the federal



      1
            Judge Clark’s order was vacated and remanded, for lack of authority,
by the district court on July 19, 2004. See In re Luna, No. 03-50956, 2004 WL
1618824 (W.D. Tex. July 19, 2004).

                                             2
defendants.   Fleming seeks to appeal that order.

     This court directed the parties to brief whether the district

court’s order      is    appealable.        For   the   following   reasons,   we

conclude that it is not, and we dismiss the appeal for lack of

jurisdiction.

     This court is a court of limited jurisdiction, with authority

to hear appeals only from “final decisions” under 28 U.S.C. § 1291,

interlocutory decisions under 28 U.S.C. § 1292, nonfinal judgments

certified as final under FED. R. CIV. P. 54(b), or some other

nonfinal   order    or     judgment    to    which      an   exception   applies.

Briargrove Shopping Ctr. Joint Venture v. Pilgrim Enters., Inc.,

170 F.3d 536, 538 (5th Cir. 1999); see also Dardar v. Lafourche

Realty Co., 849 F.2d 955, 957 (5th Cir. 1988).                An order is final

and appealable when it ends the litigation on the merits and leaves

nothing for the court to do but execute the judgment.                     United

States v. Garner, 749 F.2d 281, 285 (5th Cir. 1985) (internal

quotation marks and citation omitted).                  A dismissal of claims

against some, but not all, parties is not a final appealable

judgment unless, pursuant to FED. R. CIV. P. 54(b), the district

court determines that there is no just reason for delay and directs

entry of judgment.         See FED. R. CIV. P. 54(b); Tower v. Moss,

625 F.2d 1161, 1164 (5th Cir. 1980) (absent certification under

Rule 54(b), an order that adjudicates the rights and liabilities of

fewer than all parties is not a final appealable order).

     The substitution order did not constitute a final order for

                                        3
purposes of 28 U.S.C. § 1291.          Although the order had the effect of

dismissing claims against the individual federal defendants, it

left intact Fleming’s claims against the United States and the

remaining individual defendants.               In addition, the district court

did not indicate any intent to certify the order as final for

purposes of Rule 54(b).         Accordingly, the order was not final and

appealable.        See Dillon v. Miss. Military Dep’t, 23 F.3d 915, 917-

19 (5th Cir. 1994).

       There is no other statutory basis for appellate jurisdiction.

The    district     court’s   order    does     not    fall   within   any   of   the

appealable interlocutory orders set forth in 28 U.S.C. § 1292(a),

nor did the district court certify the order for immediate appeal

under the grounds set forth in 28 U.S.C. § 1292(b).

       Fleming contends that the order is appealable under the

collateral order doctrine.            The collateral order doctrine is a

jurisprudential exception to the final judgment rule, allowing

appeal    of   a    non-final      order   if    (1)   the    order    conclusively

determines     the    issue   in    dispute,     (2)    the   order    resolves   an

important issue completely separate from the merits, and (3) the

order is effectively unreviewable on appeal from a final judgment.

In re Grand Jury Proceedings, 43 F.3d 966, 969 (5th Cir. 1994).

All three requirements of the doctrine must be met, and “failure of

any one results in failure of jurisdiction.”                  Garner, 749 F.2d at

287.

       Although we have not had occasion previously to address the

                                           4
collateral order doctrine in the specific context of an order

granting substitution of the United States under the Westfall Act,

we are not without guidance in this area.       In Sarabyn, the district

court had denied the defendants’ motions for certification because

it found that the government officials were not acting within the

scope of their employment for FTCA purposes.        Sarabyn, 129 F.3d at

762.      We treated the denial of certification as a denial of

immunity to government employees, which is reviewable under the

collateral order doctrine.     Id. at 764; see Mitchell v. Forsyth,

472 U.S. 511, 524-30 (1985) (denials of immunity are reviewable

under   the   collateral   order    doctrine   because   the   defendant’s

immunity is effectively lost if the case is allowed to proceed to

trial).

       Unlike a denial of immunity to a government employee, an order

granting immunity is not effectively unreviewable on appeal from a

final judgment; therefore, such an order does not fall within the

collateral order doctrine.         See Burge v. Parish of St. Tammany,

187 F.3d 452, 467-68 (5th Cir. 1999); Thompson v. Betts, 754 F.2d

1243, 1246 (5th Cir. 1985).        Employing that rationale in Kassuelke

v. Alliant Techsystems, Inc., 223 F.3d 929, 930-31 (8th Cir. 2000),

the Eighth Circuit held that an order substituting the United States

in place of individual defendants constituted an order granting

immunity, which was not immediately appealable under the collateral

order doctrine.    See also Maron v. United States, 126 F.3d 317, 321

n.4 (4th Cir. 1997).

                                      5
     Kassuelke is persuasive and consistent with this court’s

precedent.   Just as the order denying Westfall Act certification in

Sarabyn constituted a denial of immunity, the district court’s order

in this case allowing substitution of the United States effectively

granted immunity to the individual defendants.             Just as orders

granting immunity are not effectively unreviewable on appeal from

a final judgment, the district court’s order substituting the United

States as a defendant in place of the individual federal defendants

is not appealable under the collateral order doctrine.           Similarly,

no other exception to the final judgment rule allowing immediate

appeal of “effectively unreviewable” orders is applicable.              See

Garner, 749 F.2d at 290 & n.11.

     Based on the foregoing analysis, we lack jurisdiction over

Fleming’s appeal and cannot review Fleming’s numerous allegations

against Judge Clark.2

     As a final matter, it is necessary to address the inflammatory

tone and content of Fleming’s arguments to this court, which

overstep the bounds of professional conduct and zealous advocacy.

     Fleming    is   a   licensed   attorney   who   has   a   professional

obligation to uphold the dignity of the judicial system and to

“temper his criticisms in accordance with professional standards of

conduct.”    Travelers Ins. Co. v. Liljeberg Enters., Inc., 38 F.3d



     2
            Fleming has apparently not pursued the procedures for filing a
judicial misconduct complaint pursuant to this court’s rules governing such
complaints.

                                     6
1404, 1409 n.6 (5th Cir. 1994).     That he is proceeding pro se does

not give him carte blanche to employ intemperate and abusive

language or to engage in ad hominem attacks on federal judges.        See

Theriault   v.   Silber,   579   F.2d   302,   303   (5th   Cir.   1978).

Accordingly, we caution Fleming that any similar conduct in the

future will invite the imposition of sanctions available to this

court.

                           APPEAL DISMISSED; SANCTIONS WARNING GIVEN.




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