USCA1 Opinion
June 27, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2395
JOHN NIKAS,
Plaintiff, Appellant,
v.
MICHAEL QUINLAN, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
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Before
Torruella, Boudin and Stahl,
Circuit Judges.
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John Nikas on brief pro se.
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Donald K. Stern, United States Attorney, and Mary Elizabeth
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Carmody, Assistant United States Attorney, Senior Litigation Counsel,
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on brief for appellees.
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Per Curiam. Plaintiff-appellant John Nikas is a
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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
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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
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Corrections, et al., No. 92-01988, was filed on April 1,
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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
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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...)
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The removal petition was captioned: Nikas v.
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Quinlan, et al., and the case was docketed as such in the
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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.),
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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
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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
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Partnership v. Conjugal Partnership, F.3d , No. 93-
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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.
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Latin American Home Health, 676 F.2d 152, 158 (5th Cir.
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1982).
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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,
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713 F.2d 875, 877 (1st Cir. 1983); Murphy v. Kodz, 351 F.2d
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163, 166-67 (9th Cir. 1965); see also Arango v. Guzman Travel
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Advisors, 621 F.2d 1371, 1377-78 (5th Cir. 1980) (removal
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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
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F.3d 222, 239 (4th Cir. 1994); IMFC Professional Services,
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676 F.2d at 159; Watkins v. Grover, 508 F.2d 920, 921 (9th
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Cir. 1974); Murphy, 351 F.2d at 167. The state defendants
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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
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Professional Services, 676 F.2d at 160; Watkins, 508 F.2d at
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921; Murphy, 351 F.2d at 168; cf. Brough v. United
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Steelworkers of America, 437 F.2d 748, 750 (1st Cir. 1971)
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(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
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of Columbia v. Merit Systems Protection Bd., 762 F.2d 129,
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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
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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
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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.
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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-
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77 n.6.
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